U.S. v. White
| Decision Date | 05 April 2006 |
| Docket Number | No. 05-2040.,05-2040. |
| Citation | 443 F.3d 582 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Johnny R. WHITE, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Karine Moreno-Taxman (argued), Office of the United States Attorney, Milwaukee, WI, for Plaintiff-Appellee.
Nicole M. Leatherwood (argued), Sidley Austin Brown & Wood, Chicago, IL, for Defendant-Appellant.
Before FLAUM, Chief Judge, and BAUER and EVANS, Circuit Judges.
Johnny White was convicted of armed robbery under 18 U.S.C. §§ 2113(a), 2113(d), and possession of a firearm in connection with that robbery under 18 U.S.C. § 924(c). He challenges his conviction, claiming an improper jury instruction, a speedy trial violation, and an erroneous evidentiary ruling; in addition he challenges his sentence. We affirm.
At 10:45 a.m. on January 9, 2004, a man wearing a ski mask and carrying a silver gun entered the State Financial Bank of Whitefish Bay, Wisconsin, and demanded money. After the tellers filled his plastic Aldi grocery bag with money, he left the bank, dropping money as he went. Responding to an armed robbery call, police officers began following a black vehicle with two occupants heading away from the bank. After a high-speed chase, the two men ran from the vehicle in different directions. The passenger was carrying a white and orange bag. The officers followed the driver, later identified as Michael Page, on foot and eventually apprehended him. Although unable to follow the passenger, the officers located the bag, which contained $8,826. Page identified White as the passenger.
White was arrested on April 14, appeared in federal court on April 30, and was indicted on May 18. Count One charged him with armed robbery, and Count Two charged him with use of a firearm during the robbery. The district court twice granted continuances in the case, given the uncertain state of sentencing law following Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and United States v. Booker, 375 F.3d 508 (7th Cir.2004). He granted the first on July 20, at the government's request, over White's objection. He granted the second on September 17, at both parties' suggestion. White was incarcerated from his arrest until his trial commenced on January 18, 2005. He never moved to dismiss the charges on speedy trial grounds.
At trial, several witnesses testified for the defense. Nailah Gentry, White's eighteen-year-old niece, testified that she was home sick on January 9. According to Gentry, White arrived at her house "between 11:30, 12 o'clock." She also testified that White's friend, Isaac Sawyer, called the house asking for White, and that she handed the phone to White, but that she could not remember what time that occurred. On cross-examination, the prosecution elicited that on January 15, 2004, Gentry told FBI Special Agent Jeffrey Moore that White did not arrive home until 12:45 p.m. on January 9. Further, the prosecution produced Ameritech phone records to impeach Gentry's testimony regarding White's whereabouts. Through questioning, the government suggested that Gentry, dialing from her home, paged White at his pager number at 12:36 p.m. on January 9. By agreement, a redacted copy of the phone records went into evidence as Exhibit 27.
Another defense witness, Isaac Sawyer, confirmed Gentry's recollection that he called White at the house that day. According to Sawyer, he called multiple times and spoke with White for approximately one minute "between 10:00 and 11:00." Samantha Rice, a private investigator, also testified for the defense. At the request of defense counsel, she rode a bus from the bank to White's home and determined that the distance was approximately fourteen miles. The prosecution impeached this testimony on cross-examination by demonstrating that Rice took a circuitous bus route.
When White proposed an alibi instruction based on the testimony of the defense witnesses, the district court denied it but agreed to provide the jury with a theory of defense instruction. The jury received that instruction together with multiple instructions clarifying the government's burden of proving beyond a reasonable doubt the elements of the charged offenses.
The jury convicted White of both charges. The presentence report (PSR) recommended an obstruction of justice enhancement and listed the amount of loss as $11,590.00. White objected to the former, but not the latter. On April 1, the district court sentenced White to consecutive terms of sixty-four months on Count One and eighty-four months on Count Two. The total sentence of 148 months was predicated on a base offense level of 20, with a two-level "financial institution" enhancement, a two-level "obstruction of justice" enhancement, and a one-level enhancement for amount of loss in excess of $10,000. White appealed.
White argues on appeal that the district court erred by: (1) denying his request for an alibi instruction; (2) granting continuances violative of his statutory and constitutional speedy trial rights; (3) admitting into evidence phone records that lacked foundation and had not been disclosed to the defense; and (4) imposing two enhancements at sentencing.
As to the denial of the tendered alibi jury instruction, we review a district court's decision regarding jury instructions for an abuse of discretion. United States v. Chavis, 429 F.3d 662, 671 (7th Cir.2005). A defendant is entitled to have the jury consider any theory of defense, including an alibi defense, "that is supported by law and that has some foundation in the evidence." United States v. Carter, 910 F.2d 1524, 1531 (7th Cir.1990) (citing United States v. Grimes, 413 F.2d 1376, 1378 (7th Cir.1969)).
White proposed the following alibi instruction:
You have heard evidence that the defendant was not present at the time and place where the offense charged in the indictment is said to have been committed. The government must prove beyond a reasonable doubt the defendant's presence at the time and place of the offense.
The district court denied the request for an alibi instruction and provided the following theory of defense instruction instead: "The theory of the defense is that the defendant was not present at the time and place where the offenses charged in the indictment are alleged to have been committed."
An alibi is a "defense based on the physical impossibility of a defendant's guilt by placing the defendant in a location other than the scene of the crime at the relevant time." Black's Law Dictionary 79 (8th ed.2004). It is undisputed that the robbery occurred at about 10:45 a.m. on January 9; any alibi testimony would involve White's location at that time. Neither Gentry nor Sawyer provided such testimony.
Gentry testified that White was with her at home between 11:30 a.m. and 12:00 p.m. This testimony not only does not relate to the relevant time, but also was undermined by the cross-examination of Gentry, which established that on January 15 Gentry told Agent Moore that White did not come home until 12:45 p.m. on January 9. Gentry's testimony did not establish an alibi for White's location at 10:45 a.m.
Sawyer's testimony was of little help. When asked whether he called White at home that day, Sawyer responded that he spoke with him "between 10:00 and 11:00." He elaborated that his conversation with White was "very short," lasting only a minute. Gentry recalled their conversation, but not the time it occurred. The defense was not entitled to the alibi instruction and the district court did not err in declining to give it.
White argues that the instructions as given did not adequately guard against the possibility of jury misunderstanding— i.e., that the jury would think that his failure to prove an alibi amounted to evidence of guilt. In order to receive a new trial based on erroneous instructions, a defendant "must show both that the instructions did not adequately state the law and that the error was prejudicial to [him] because the jury was likely to be confused or misled." United States v. Smith, 415 F.3d 682, 688 (7th Cir.2005) (quoting Boyd v. Ill. State Police, 384 F.3d 888, 894 (7th Cir.2004)). In denying the alibi instruction, the district court stated that he would "be happy to tailor an instruction along the lines that [defense counsel] suggested, but it will have to be cast as a theory of defense instruction," and later gave such an instruction.
Nor can he demonstrate that he was prejudiced by possible jury confusion. In our prejudice analysis, "we `consider[] the instructions as a whole, along with all of the evidence and arguments,' to determine whether `the jury was misinformed about the applicable law.'" Smith, 415 F.3d at 688 (quoting Boyd, 384 F.3d at 894). White argues that the jury should have been instructed that his presence at the scene was an element of the crime; it is self-evident that presence is a necessary predicate for commission of the charged acts. The jury was instructed repeatedly on the government's burden, first in general instructions on their duties, and second in instructions on the charged offenses. In the second part, the specific instruction read as follows: "The government has the burden of proving each of the essential elements of the crime charged in the indictment beyond a reasonable doubt." One element of Count One required the government to prove "beyond a reasonable doubt" that "the defendant took from the person or presence of another, money belonging to or in the custody or possession of State Financial Bank." It strains reason to argue, as White does, that the jury could have found him guilty on this charge without concluding that he was physically present at the scene. The same is true for Count Two, which required the government to prove "beyond a...
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