United States v. Jett, s. 17-2051

• Decision Date: 07 November 2018
• Docket Number: 17-2060,17-2052,Nos. 17-2051,s. 17-2051
• Citation: 908 F.3d 252
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Duprece JETT, Earl Walker, and Damion McKissick, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

908 F.3d 252

UNITED STATES of America, Plaintiff-Appellee,

v.Duprece JETT, Earl Walker, and Damion McKissick, Defendants-Appellants.

Nos. 17-2051

17-2052

17-2060

United States Court of Appeals, Seventh Circuit.

Argued September 5, 2018

Decided November 7, 2018

Brian L. Reitz, Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Indianapolis, IN, for Plaintiff-Appellee.

Ruth F. Masters, Attorney, MASTERS LAW, Oak Park, IL, for Defendant-Appellant DUPRECE JETT.

Christopher Keleher, Attorney, KELEHER APPELLATE LAW GROUP, Chicago, IL, for Defendant-Appellant EARL L. WALKER.

Gwendolyn M. Beitz, Joseph M. Cleary, Attorney, INDIANA FEDERAL COMMUNITY DEFENDERS, INC., Indianapolis, IN, Johanna M. Christiansen, Thomas W. Patton, Attorneys, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Peoria, IL, for Defendant-Appellant DAMION MCKISSICK.

Before Kanne, Sykes, and St. Eve, Circuit Judges.

St. Eve, Circuit Judge.

Two armed men robbed three cash-and-check stores in the Indianapolis area. The heists were not especially sophisticated, but they went viral over the robbers' 1970s-themed disguises. That attention drew an anonymous tip, which led law enforcement to Duprece Jett and Damion McKissick, as well as a third man, Earl Walker, who officers believed was involved in a planned fourth robbery.

The government charged all three men with conspiracy in violation of the Hobbs Act and attempted bank robbery. A jury convicted them on both counts. Jett, McKissick, and Walker now appeal, citing a host of trial errors they submit require acquittal or a new trial. We see only one such error, with respect to the sufficiency of the evidence on the attempted-robbery count. We reverse and remand with instructions that the district court enter a judgment of acquittal on that count and resentence the defendants. Otherwise, we affirm.

I. Background

On September 15, 2015, two men, disguised and armed, robbed an Advance America Check Cashing store in Indianapolis. A few days later, on September 19, 2015, the same men hit an Indiana Members Credit Union branch in Indianapolis. Two months later, on November 19, 2015, they robbed a different Credit Union branch, located in Avon, Indiana. Each time, the men arrived and fled in a recently stolen vehicle, or, as it is known, a "switch car."

A state-federal task force investigated the string of robberies. It fielded an anonymous tip claiming one of the two men was Damion McKissick. The task force began surveilling McKissick, which led it to Duprece Jett. While observing Jett and McKissick on the morning of December 12, 2015, officers observed four cars at Jett's residence. Two cars left the residence and headed to a public library. At the library one driver exited his car and entered a Buick LeSabre, which was recently reported stolen. All three cars drove away together.

The three cars made several stops: a hotel, Jett's residence, a gas station, and an apartment-complex parking lot. The LeSabre then left the parking lot alone, and it drove near several businesses—including an Indiana Members Credit Union branch—before returning. Officers suspected that a fourth robbery was imminent. After the LeSabre left the parking lot a second time, again alone, officers attempted to pull it over. The LeSabre sped off and the officers gave chase. After exceeding 100 miles per hour, weaving through streets, forcing vehicles off the road, and driving into oncoming traffic, the LeSabre lost control and slid into a ditch.

Its driver, Earl Walker, and passenger, McKissick, attempted to run on foot, but officers apprehended them. Officers searched the LeSabre and found a ski mask, two pairs of gloves, a backpack, a duffle bag, and an airsoft pistol.

The government charged Jett, McKissick, and Walker with two counts each. Count 1 charged conspiracy in violation of the Hobbs Act. 18 U.S.C. § 1951(a). Count 2 charged attempted bank robbery "by force and violence, or by intimidation." Id. § 2113(a).

A. Pretrial Proceedings

Before trial, Walker moved under Federal Rule of Criminal Procedure 14(a) for a severance. He argued that a joint trial with Jett and McKissick would prejudice him. In addition to the optics of being tried alongside the men accused of committing the three armed robberies, Walker claimed that a video recording taken of McKissick at the stationhouse would unfairly inculpate him.

Specifically, at the stationhouse just after the car chase, law enforcement placed McKissick and Walker in adjacent interrogation rooms. Walker invoked his Fifth Amendment rights; McKissick gave a recorded statement. While McKissick awaited questioning, and while being recorded, he attempted to communicate with Walker. He shouted:

Hey Earl! Earl! Nothing ... joyriding ... fleeing.

Hey Earl! Hey Bro

They jumped the gun. I say they jumped the gun. We ain't do shit. They didn't give us a chance. So—hey—uhh.

Walker argued that these statements incriminated him. He also contended that admitting the statements would pit his Sixth Amendment right to confrontation against McKissick's Fifth Amendment right not to testify, which Bruton v. United States , 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), generally prohibits.

The district judge denied Walker's motion. She ruled that a joint trial itself would not unfairly prejudice Walker, and she explained that Walker's Bruton concerns were premature: the statements did not appear "powerfully incriminating," the government had not moved to admit the statements, and, even if it did, the government could redact the statements to avoid implicating Walker. Following suit, the government later moved in limine to admit a scrubbed video recording of the statements with Walker's name omitted. The district judge granted that motion and admitted the statements under Federal Rule of Evidence 801(d)(2)(A) as statements offered against a party-opponent.

Just before trial began, the parties exchanged witness lists. The government's list included two FBI Special Agents—Adam Vail and Brian Guy—but it did not indicate whether those witnesses (or any witnesses) would testify in a lay capacity, an expert one, or both. This procedure was in line with the district judge's former courtroom rule that she would not designate a witness as an expert.¹

B. The Trial and Sentencing

The jury trial began on February 6, 2017, and lasted five days. The government elicited testimony from several employees of the check-and-cash stores and FBI agents, as well as admitted into evidence surveillance footage from the three robberies.

As for the September 15 robbery, an Advance America employee testified that two men entered wearing sunglasses, wigs, and construction jackets. One man was heavy set and the other was thin, according to the witness. Surveillance footage confirmed this description. The heavier man was dressed as funk legend Rick James, with a braided, beaded wig and flashy sunglasses; the thinner man was dressed, seemingly, as Youngblood Priest from the 1972 hit film Super Fly , with a long-haired wig, mustache, and oversized sunglasses of his own. Both men wore bright orange construction vests. The government called a man who worked with Jett at a logistics company to testify that the construction jackets the men wore were identical to the ones issued to the company's employees. An FBI agent, Kevin Horan, testified that he analyzed Jett's and McKissick's cell-phone data from September 15, which indicated that both men were in the area of the Advance America around the time of the robbery. No eyewitness, however, could identify Jett or McKissick as the robbers. The men made off with $2,751.

Regarding the September 19 robbery, a Credit Union branch manager testified that, after the two men entered, one hopped over the teller desk. He pointed a gun and told everyone to get down. She observed that the men wore hats and wigs, but she otherwise did not "get a good look at" the men. Surveillance footage again showed the men dressed as Rick James and Youngblood Priest. Another employee testified that he saw one of the men grab a Credit Union employee by the neck and threaten him. He, too, could not identify Jett or McKissick as the robbers. None of the government's eyewitnesses could.

Jett's counsel tried to highlight this point during his cross-examination of Agent Guy. He asked whether it was true that the investigation had "uncovered" no one who could identify either Jett or McKissick as the robbers. Agent Guy disagreed, but he did not elaborate. Before redirect, the government requested a sidebar. It argued that Jett's questioning had opened the door for Agent Guy to identify Jett as one of the two men in the surveillance footage based on Agent Guy's interaction with Jett on December 14, 2015, when he helped execute a search warrant. The government also contended that Agent Guy's identification was admissible under Federal Rule of Evidence 701, as he could testify that Jett's appearance had changed since late 2015 by losing weight. The district judge agreed on both counts. She allowed the government to ask about whether Agent Guy—but not any other law-enforcement agents—had identified Jett as the robber based on the surveillance footage and testify to Jett's change in appearance. Back on the stand, Agent Guy testified that Jett appeared to have lost weight and that, based on his earlier interaction with Jett, Jett was the robber pictured on tape with the beaded-hair wig.

The government put on more evidence regarding the September 19 robbery. A fingerprint examiner testified that she found a fingerprint on the Credit Union's exit door that matched Jett's, although she testified that she could not identify when the print was left. This concession mattered, since Jett banked at this Credit Union. Agent Horan testified that Jett's and McKissick's cell-phone data showed that both men were in the area of the Credit Union around the time of the September 19 robbery. This time, the men stole $19,001.61.

As for the final robbery, on November 19, an employee of the Avon...