U.S. v. Sutton, 02-1679.

• Decision Date: 23 July 2003
• Docket Number: No. 02-1679.,No. 02-1687.,No. 02-1739.,02-1679.,02-1687.,02-1739.
• Citation: 337 F.3d 792
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert D. SUTTON, James H. Fleming, and Michael L. Brown, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

337 F.3d 792

UNITED STATES of America, Plaintiff-Appellee, v. Robert D. SUTTON, James H. Fleming, and Michael L. Brown, Defendants-Appellants.

No. 02-1679.

No. 02-1687.

No. 02-1739.

United States Court of Appeals, Seventh Circuit.

Argued April 14, 2003.

Decided July 23, 2003.

COPYRIGHT MATERIAL OMITTED

Stephen P. Sinnott (argued), Office of U.S. Attorney, Madison, WI, for U.S.

Brent A. Hannafan (argued), Dechert, Price & Rhoads, Philadelphia, PA, for Robert D. Sutton.

Norman D. Singleton (argued), New Auburn, WI, for James H. Fleming.

Joseph L. Sommers (argued), Madison, WI, for Michael L. Brown.

Before CUDAHY, POSNER, and EASTERBROOK, Circuit Judges.

CUDAHY, Circuit Judge.

Brown, Sutton and Fleming appeal their convictions and sentences for committing a series of armed robberies. They challenge the sufficiency of the effect on interstate commerce supporting the Hobbs Act charges. They also appeal the district court's refusal to allow admission of certain fingerprint evidence. Sutton and Brown appeal the admission at trial of Fleming's out of court confession claiming a violation of the Confrontation Clause. Sutton challenges the enhancement of his sentence for obstruction of justice. Finally, Fleming challenges the imposition of his multiple life sentences in a consecutive, rather than concurrent, manner. None of the issues raised has merit. We affirm.

I.

The three appellants, Michael Brown, James Fleming and Robert Sutton, appeal their convictions and sentencing on a variety of shared and individual issues involving a series of robberies they committed in and around Madison, Wisconsin, including the robbery of a Wendy's Restaurant ("Wendy's"), a Kohl's Food Store ("Kohl's"), and a Great Midwest Bank ("Midwest Bank"). In all, there were eleven robberies resulting in a twenty-one count indictment.

Prior to trial, both the defendants and government made motions in limine to exclude certain evidence. The government sought to exclude the admission of certain fingerprint evidence. At the robberies of the Kohl's and Wendy's the police had collected fingerprints from locations that witnesses had identified as having been touched by the robbers. Analysis by the police fingerprint laboratory concluded, however, that the prints taken from the crime scenes did not match the defendants' fingerprints. The defendants sought to admit this evidence to demonstrate that they were not the robbers. The district court granted the government's motion to exclude because the defendant failed to call an expert witness to explain the reports. The district court reasoned that without an expert witness's explanation the reports were of no evidentiary value.

Sutton and Brown's motion in limine sought, inter alia, to exclude the testimony of Detective Dandurand, who was to testify about the confession of co-defendant Fleming, as a violation of their Confrontation Clause rights. See Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). The government redacted the names of Brown and Sutton, replacing them with neutral identifiers. The district court found that the redaction met the requirements of the Confrontation Clause, and denied the defense motion.

Prior to the federal trial in the present case, Sutton was tried for the Midwest Bank robbery in a state court proceeding held in Dane County Circuit Court. At that trial, Sutton and a woman, Lashecka Calvin, testified that they were together at a place far from the bank during the Midwest Bank robbery, thus providing an alibi for Sutton. Sutton was acquitted by the jury in that trial. For the present federal case, Sutton had listed Calvin as an alibi witness and subpoenaed her. Testifying before the grand jury in the present case, Calvin, together with another woman, Angela Cramer, recanted Sutton's alibi and testified that Sutton had asked them to lie about being with him at the time of the robbery. Cramer also testified to this at trial.

Brown, Fleming and Sutton were convicted by the district court of multiple counts of conspiracy to violate, and substantive violations of, the Hobbs Act, 18 U.S.C. § 1951; of numerous bank robberies under 18 U.S.C. § 2113(a); and of use of firearms to commit robberies under 18 U.S.C. § 924(c). Not every defendant was charged in every substantive count because not all defendants were involved in every robbery. Although found guilty of all the other counts with which he was charged, Fleming was found not guilty of using a firearm in the Clark Retail Enterprises robbery (Count 9), which is not at issue in this appeal.

Before and after the verdict, the defense moved for acquittal pursuant to Fed. R.Crim.P. 29, based on the argument that the government had failed to show the requisite effect on interstate commerce necessary to support a Hobbs Act conviction. The court denied both motions.

Brown was sentenced to 73 years and 4 months imprisonment.¹ Fleming, per 18 U.S.C. § 3559(c)'s three-strikes provision, was sentenced to life in prison on each count for which he was convicted. The life sentences for Fleming's § 924(c) convictions were imposed consecutively, as required by § 924(c)(1)(D). Sutton received a sentence of 52 years and 3 months. His sentencing included a two-level sentencing enhancement under U.S. Sentencing Guidelines Manual § 3C1.1 ("U.S.S.G.") for obstructing justice by providing a false alibi defense in Sutton's state case, and attempting to do so during the federal case.

There are five issues on appeal. First, all of the appellants claim that the government did not provide sufficient evidence of an effect on interstate commerce to support the Hobbs Act convictions. Second, the appellants all challenge the exclusion of the government's fingerprint reports. Third, Brown and Sutton appeal the district court's decision to allow Detective Dandurand to testify about Fleming's confession. Fourth, Sutton appeals the district court's obstruction of justice finding and subsequent sentence enhancement of two levels. Fifth, Fleming appeals his consecutive life sentences.

II.

A. Hobbs Act

All three defendants appeal the court's decision that there was sufficient effect on interstate commerce to support the indictments' counts under the Hobbs Act. They argue that, after the Supreme Court's decisions in United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995) and United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000), the government must prove a "substantial effect" on interstate commerce in order for there to be jurisdiction to prosecute under the Hobbs Act, and failed to do so. 18 U.S.C. § 1951.

However, the defendants acknowledge that this argument has been rejected by this court in the past. We have ruled definitively that the Hobbs Act only requires that the government show a de minimis effect on interstate commerce to "bring robbery within its prosecutorial reach." United States v. Peterson, 236 F.3d 848, 851-52 (7th Cir.2001).² The defendants also acknowledge that application of the government's "depletion of assets" theory easily meets the de minimis effect standard. We find nothing in the defendants' arguments that would persuade us to overrule established circuit precedent.

B. Fingerprint Evidence

The admission or exclusion of evidence (when objected to at trial) is reviewed for abuse of discretion. United States v. Bonner, 302 F.3d 776, 780 (7th Cir.2002). However, the jury's verdict will stand if the evidentiary error is harmless. An error will be found harmful only if it had a "substantial and injurious effect or influence on the jury's verdict." Young v. James Green Mgmt., Inc., 327 F.3d 616, 621 (7th Cir.2003) (internal quotations omitted).

The district court refused to admit two of the government's fingerprint reports into evidence because the defense, which wanted to use the reports' conclusions to demonstrate that the defendants were not present at two of the robberies, failed to call or subpoena an "expert" to explain the report. R. 185 at 64. The decision to exclude the reports was not an abuse of discretion, and to the extent there was any error by the district court, it was harmless.

This issue involves a number of interrelated concerns. To begin with, the defendants argue that the reports are admissible as self-authenticating documents that fall within the public records exception to hearsay. It is likely true that the fingerprint reports are self-authenticating and fall within the public records exception to hearsay, but this is not enough to make them admissible. The reports appear to be certified copies of public records that meet the self-authentication requirements of Federal Rule of Evidence ("FRE") 902, and would not have required a foundation witness. Neither the district court nor the government disputes the authenticity of the fingerprint reports. Additionally, the evidence was a report of a public office setting forth the opinions of that office resulting from a police investigation into the Wendy's and Kohl's robberies, and likely not excludable as hearsay. See FRE 803(8)(C). The Supreme Court made clear in Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 163-64, 109 S.Ct. 439, 102 L.Ed.2d 445 (1988), that the Rule 803(8)(C) exception encompasses opinions and conclusions and is not limited to purely factual findings. In Beech Aircraft Corp., an investigative report of an airplane crash contained the investigator's opinion concerning whether pilot error was the cause of the accident. Id. at 158, 109 S.Ct. 439. The Supreme Court ruled that the opinions contained in the report were also covered by the exception to the hearsay rule contained in Rule 803(8)(C). Id. at 170, 109 S.Ct. 439. The state's fingerprint reports, which express the conclusions and opinions of a state laboratory technician concerning the discovered fingerprints, are similarly not excludable as hearsay.³

But hearsay goes only to the form of the testimony. The...