United States v. Farmer

• Decision Date: 26 August 2013
• Docket Number: No. 12–3132.,12–3132.
• Citation: 717 F.3d 559
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Franchie FARMER, Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

717 F.3d 559

UNITED STATES of America, Plaintiff–Appellee,

v.Franchie FARMER, Defendant–Appellant.

No. 12–3132.

United States Court of Appeals, Seventh Circuit.

Argued April 4, 2013.

Decided May 30, 2013.

Rehearing and Rehearing En Banc Denied Aug. 26, 2013.

Thomas E. Leggans (argued), Attorney, Office of the United States Attorney, Benton, IL, for Plaintiff–Appellee.

Rodney H. Holmes (argued), Attorney, St. Louis, MO, for Defendant–Appellant.

Franchie Farmer, Oklahoma City, OK, pro se.

Before MANION, TINDER, and HAMILTON, Circuit Judges.

HAMILTON, Circuit Judge.

A jury convicted Franchie Farmer of armed bank robbery in violation of 18 U.S.C. §§ 2113(a), (d), and 2, as well as use of a firearm during a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A)(ii). Several days after the trial, an alternate juror contacted Farmer's counsel and said that other jurors had made statements during the prosecution's case indicating that they had discussed the evidence and had already decided Farmer was guilty, all before jury deliberations could have properly begun. Farmer moved for a new trial, arguing that this premature deliberation prejudiced her and violated her right to a fair trial. The district court denied the motion for a new trial and imposed a sentence of 141 months in prison.

Farmer appeals her conviction, arguing for the first time on appeal that the evidence was not sufficient to support a guilty verdict. She also renews her contention that she is entitled to a new trial based on the juror's information. We affirm. The evidence was sufficient to support a guilty verdict, and the district court did not abuse its discretion by denying the motion for a new trial.

I. Sufficiency of the Evidence

“An appellant who challenges the sufficiency of the evidence underlying his conviction must show that no reasonable jury could have found his guilt beyond a reasonable doubt.” United States v. Tavarez, 626 F.3d 902, 906 (7th Cir.2010), citing Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). If “any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could have found the essential elements of the crime beyond a reasonable doubt, then the conviction must be upheld.” United States v. Durham, 645 F.3d 883, 892 (7th Cir.2011); United States v. Huddleston, 593 F.3d 596, 601 (7th Cir.2010). This standard is difficult to meet, though the difficulty depends directly on the strength of the government's evidence. United States v. Jones, 713 F.3d 336, 339 (7th Cir.2013).

Farmer did not argue to the district court that the evidence was insufficient, so our review is only for plain error. United States v. Cummings, 395 F.3d 392, 397 (7th Cir.2005). In this case, though, the difference between plain error review and the ordinarily applicable standard makes no difference. There was no error, for there was substantial evidence of Farmer's guilt.

We summarize the government's evidence and theory of the case in light of the deferential standard of review for sufficiency of the evidence. Two armed people robbed the Capaha Bank in Tamms, Illinois on November 6, 2008. The government's theory of the case was simple: Farmer helped plan the robbery, wrote the demand note given to a teller, and drove the two robbers to and from the bank. (Farmer brought with her a mentally disabled woman for whom she provided daily care.)

A bank customer testified that he escaped from the bank during the robbery, hid from view outside the bank, and saw the two robbers leave the bank and enter the backseat of a dark SUV. He also testified that he saw two people sitting in the front seat of the SUV. The police testified that they were able to identify these two armed people as Richard Anderson and Holli Wrice after Anderson's ex-girlfriend identified Anderson from surveillance tape that aired on the local news, and one of his fingerprints was found on the robbery demand note.

Police testified to the relevant aspects of their investigation: A few months into the investigation, police identified the getaway SUV as a black 2002 Toyota Sequoia registered to Farmer. During a police interview, Farmer told police that she loaned her car and cell phone to Wrice in November 2008. Farmer also informed police that on the day in question she was working as a home care provider for a mentally disabled client. (The client was unable to testify.)

Police testified that after interviewing Farmer, they gathered cellular tower data on her cell phone. This data included a log of all outgoing and incoming calls, as well as the time and place of every call. An FBI agent testified that this analysis revealed inconsistencies between Farmer's story that she loaned her cell phone to Wrice and the cell phone data. The call logs showed dozens of calls between Wrice's and Farmer's cell phones before, during, and after the robbery. The FBI agent also testified that when Farmer was confronted with this anomaly, she could not provide any explanation. Finally, the FBI agent testified that the cell phone data showed that Farmer's cell phone traveled the route of the bank robbery on the date and time in question.

Wrice and Anderson also testified at trial pursuant to plea agreements that required them to cooperate and testify truthfully. Wrice testified that she and Farmer had discussed committing the bank robbery for some time before November 2008. Both Wrice and Anderson testified that Farmer drove them, along with her disabled client, to the bank and that they returned to Farmer's car after the robbery. She then dropped the two off at her house before returning with her client to the client's home. Wrice and Anderson also both testified that earlier that day, they saw Farmer write the demand note they later presented to the teller during the robbery. A handwriting analyst testified that the handwriting on the demand note shared a number of characteristics with a sample of Farmer's handwriting, but the analyst could not exclude the possibility that someone else had written the note.

Viewing all this evidence, as we must, in the light reasonably most favorable to the government, there was ample evidence to find Farmer guilty on the government's theory that she had planned and orchestrated the robbery. In fact, Farmer does not actually argue that the evidence presented at trial was insufficient, if believed, to support each element of the crimes beyond a reasonable doubt. She instead challenges the credibility of the government's witnesses, arguing that their testimony was contradictory and unreliable and should not have been believed. Credibility challenges face an even higher hurdle than claims that the totality of the evidence is insufficient to support the conviction. United States v. Carraway, 612 F.3d 642, 645 (7th Cir.2010) (“As if the bar for sufficiency-of-evidence challenges were not high enough, Carraway's argument takes a particularly difficult route by effectively conceding that he cannot win unless we were to find that Owens, the primary witness linking him to the crack, was not credible.”).

When considering a challenge to the credibility of a witness' testimony, “[w]e will overturn a conviction based on a credibility determination only if the witness' testimony was incredible as a matter of law.” Id. (internal citation omitted); see also United States v. Hayes, 236 F.3d 891, 896 (7th Cir.2001) (“The lack of a complete overlap between the recollection of two witnesses is hardly surprising, and it was the province of the jury to determine whether those inconsistencies renderedthe testimony incredible.”). Given our duty not to invade the province of the jury, to find a witness' testimony incredible as a matter of law, it must “have been physically impossible for the witness to observe what he described, or ... impossible under the laws of nature for those events to have occurred at all.” Id. (internal quotations omitted). As our summary of the trial evidence shows, any challenge to Wrice's or Anderson's credibility as well as to any inconsistencies between their testimonies cannot meet this high burden. Farmer's challenge to the testimony falls far short of this standard.

Farmer also challenges specific pieces of evidence, namely the cell phone data and the handwriting analysis, in isolation, as insufficient to sustain her conviction. This argument is misguided. The law does not require that each piece of evidence exclude beyond a reasonable doubt the possibility of innocence. The totality of the evidence, taken together as a whole, must do so. We will overturn a verdict “only when the record contains no evidence, regardless of how it is weighed, from which the jury could find guilt beyond a reasonable doubt.” United States v. Huddleston, 593 F.3d 596, 601 (7th Cir.2010). The jury's duty was to consider the entire record as presented at trial; it was not required to consider whether or not one piece of evidence in isolation supported a guilty verdict. For these reasons, Farmer's challenges to the sufficiency of the cell phone data and handwriting evidence fail.

Farmer's last challenge, that Wrice had the motive and opportunity to frame her, is an argument for the jury at trial, not for us on appeal. We do not reweigh the evidence or make our own credibility determinations. “The inquiry does not ask what we would have decided if we were on the jury. We need not be convinced by the evidence ourselves.” United States v. Jones, 713 F.3d 336, 340 (7th Cir.2013). We need only ensure that a rational jury could, based on the record presented, rationally find guilt beyond a reasonable doubt on each element of the charged crimes. The jury here could do so.

II. Motion for a New Trial

The jury convicted Farmer after three days of testimony. Farmer then moved for a new trial alleging juror misconduct. She submitted an affidavit from an alternate juror. (At oral argument, counsel made it clear that the juror,...