U.S. v. Woods

• Citation: 556 F.3d 616
• Decision Date: 17 February 2009
• Docket Number: No. 07-4074.,07-4074.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Donald M. WOODS, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

556 F.3d 616

UNITED STATES of America, Plaintiff-Appellee, v. Donald M. WOODS, Defendant-Appellant.

No. 07-4074.

United States Court of Appeals, Seventh Circuit.

Argued January 8, 2009.

Decided February 17, 2009.

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

Douglas J. Rathe, Attorney (argued), Wilmette, IL, for Defendant-Appellant.

Before EASTERBROOK, Chief Judge, and EVANS and TINDER, Circuit Judges.

EVANS, Circuit Judge.

Needing a getaway car for a bank robbery, Donald Woods borrowed one from a woman who bought drugs from him. Perhaps not the best choice — it had vanity license plates. Then he used part of the take from the robbery to retrieve a van he had borrowed from another woman. The second car had been impounded by the police when, while he was driving it the night before the robbery, he was cited for operating a motor vehicle after his license was revoked and for illegal sound amplification. Not all that surprisingly, things went bad, and Woods was indicted and subsequently convicted after a jury trial of conspiracy to commit bank robbery and bank robbery. He was sentenced to 60 months in prison on the conspiracy charge and 160 months on the substantive charge, with the sentences to run consecutively. He appeals both the conviction and sentence.

At about 9:20 on an August morning in 2006, two masked men entered the NuMark Credit Union in Joliet, Illinois, and made off with $23,000. They left in the car Woods had borrowed from his drug customer, Aimee Sefcik, a car bearing the license plate AIMSEF6. Woods was driving. The Joliet Police Department began an investigation and two days later took one of the robbers, Christian Noel, into custody. Noel gave a written statement to detectives and later a videotaped confession. He also spoke to FBI agents. In each statement, he said he committed the robbery with Donald Woods and Anthony Jenkins, a/k/a/ Bonzo. His story about who did what — i.e., who drove the car and who went into the credit union — varied from time to time, but at Woods' trial he testified that he and Jenkins went into the credit union and Woods drove the getaway car.

Woods did not testify at trial, but he presented an alibi — a pretty good one as alibis go — as to his whereabouts on the morning of the robbery. The story begins the night before the robbery when Woods was driving a car registered to his girlfriend, Anita Robinson. Police stopped him because the car radio was playing way too loud. As it turns out, he also had a revoked license. Officers had the car towed to Collision Revision in Joliet. As to the alibi, Robinson testified that she and Woods lived together, and the morning of the robbery they awoke between 9:30 and 9:45. They left the house, she said, at about 10 a.m. to try to borrow money from Woods' aunt in order to pay the fee to have the car released. She said Woods obtained $500, after which she and Woods drove to the police station to pay the fee. But because Robinson had not brought the title to the car with her, they had to go home to get it. They returned to the station at about 11 a.m. and paid the fee. The receipt is stamped 11:14 a.m. Their visits to the police station that morning were recorded by security cameras.

In addition to presenting his alibi witness, Woods also called a Quentin Reed, who met Noel when they were both incarcerated at the Dodge County Correctional Facility in Wisconsin. Noel told Reed that he had committed the robbery with two of his cousins. The point of the testimony was that "cousins" should be taken literally; Woods and Noel are not related; and therefore Woods could not have been one of the robbers.

A few more details of this improbable story will unfold as we discuss the issues Woods raises. He contends that the trial judge committed errors in the admission of evidence, that the evidence was not sufficient to sustain the conviction, that the judge improperly calculated the sentencing guidelines and did not consider the sentencing factors set out in 18 U.S.C. § 3553(a)(2), and that there is unwarranted disparity between his sentence and the one his accomplice and codefendant, Noel, received.

We will first turn to the evidentiary rulings, which we review for an abuse of discretion. This general standard applies in the situations before us — where the evidence admitted is said to be "intricately related" to the charged offense, United States v. Wantuch, 525 F.3d 505, 517 (7th Cir.2008), and where it involves a transcript of an audio recording. United States v. Wilson, 481 F.3d 475 (7th Cir. 2007). Even if there is an evidentiary mistake made by the trial court, we do not reverse if the error was harmless. United States v. Bonty, 383 F.3d 575 (7th Cir. 2004).

The first item of evidence Woods contends was improperly admitted was testimony that he provided drugs to Sefcik. Woods argued in the trial court that, if the jurors heard he sold drugs, they would conclude that he was a bad person and likely to participate in a bank robbery. The government contended that the evidence was intricately related to the charged offense in that it explained why Sefcik would give Woods her car. The evidence showed that Woods often used it and that on the day of the robbery he borrowed it on short notice without having to explain why he wanted it. The evidence explained why he could instruct Sefcik to lie for him and say that "`John' borrowed the car." We cannot find an abuse of discretion in the admission of the evidence. The fact that Woods sold drugs does not significantly increase the possibility that he would rob a bank. Furthermore, the evidence fills a big gap by explaining why Sefcik would so willingly lend him her car even after he talked with her about robbing a bank.

Woods also contests the admission of the transcript of the recorded conversation between him and Noel. Three days after the robbery, Noel worked with police officers to place a telephone call to Woods, a call which was recorded. During the conversation, Noel asked what happened to Bonzo (Jenkins). Woods said that Bonzo left town and his whereabouts were known. Woods told Noel to stay off the telephone, but as soon as the call ended, Woods called Jenkins.

Woods contended that on the recording, his words were virtually impossible to understand. He was concerned that the inaudibility would mean that the jurors would not be able to evaluate the context of the conversation, the manner in which words were said, or the inflection of the voices and would therefore simply rely on the written transcript. The district judge examined the recording and the transcript in camera. At trial, the recording itself was admitted without objection. But when the government moved that the transcript be admitted, Woods objected, and a voir dire examination of Noel proceeded. Noel testified that he actively participated in the preparation of the transcript and that he could understand the words. The judge concluded that the objection went to the weight, not the admissibility, of the transcript. We see no abuse of discretion in the ruling.

The final piece of evidence Woods objects to is the testimony of William Tierney, an employee of NuMark. Tierney had drawn a sketch of a man he had observed in the credit union the day before the robbery, ostensibly Woods. The man was talking on a cell phone. Because there was a policy prohibiting customers from using cell phones inside the credit union, Tierney asked the man to turn it off. The sketch Tierney later drew depicted a man with hair. Tierney also had been shown a photo array from which he identified Woods. But each man in the array was bald, and that, Woods argued, was unduly suggestive, and anything flowing from it was "fruit of the poisonous tree." At trial, Tierney identified Woods in the courtroom, and the prosecution made no mention of the sketch or the photo array. On cross-examination, the defense elicited testimony about both the sketch and the photo array and moved that the sketch be admitted into evidence. It was. On appeal, Woods argues that, because the person in Tierney's sketch had sideburns and at trial it was established that Woods had been bald for many years, Tierney's testimony that he had seen Woods in the lobby of the credit union the day before the robbery was unduly prejudicial. Whatever Woods' current objection is to Tierney's testimony, the matter is one for cross-examination, which is precisely the way it came before the jury. The jury was properly in a position to decide whether Tierney's testimony was worthy of belief or not.

We conclude that there were no evidentiary errors. But had there been, they would have been harmless. The testimony of codefendant and accomplice Noel about how the robbery went down was sufficient by itself to sustain the conviction.

Which brings us to the issue of the sufficiency of the evidence. A defendant faces a "nearly insurmountable hurdle" in challenging the sufficiency of the evidence to sustain a conviction. United States v. Spells, 537 F.3d 743, 746 (7th Cir.2008). He must show that after viewing the evidence in the light most favorable to the prosecution, no rational trier of fact could have found him guilty beyond a reasonable doubt. United States v. Stevens, 453 F.3d 963 (7th Cir.2006). We do not weigh the...