USA. v. Curry, 98-1493

• Decision Date: 20 August 1999
• Docket Number: No. 98-1493,98-1493
• Citation: 187 F.3d 762
• Parties: (7th Cir. 1999) United States of America, Plaintiff-Appellee, v. Shawntell Curry, Defendant-Appellant
• Court: U.S. Court of Appeals — Seventh Circuit

Page 762

187 F.3d 762 (7th Cir. 1999)

United States of America, Plaintiff-Appellee, v. Shawntell Curry, Defendant-Appellant.

No. 98-1493

United States Court of Appeals, Seventh Circuit

Argued April 12, 1999

Decided August 20, 1999

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 97 CR 121--Charles R. Norgle, Sr., Judge. [Copyrighted Material Omitted] Before Posner, Chief Judge, and Easterbrook and Diane P. Wood, Circuit Judges.

Diane P. Wood, Circuit Judge.

For a brief time, Shawntell Curry and various others made it their business to rob various establishments in Illinois and Wisconsin. Charged and convicted of conspiring unlawfully to interfere with commerce through these robberies in violation of 18 U.S.C. sec. 1951 (and a related gun charge), Curry has appealed. His reasons for urging reversal of his conviction include allegedly erroneous evidentiary rulings, jury instructions, a supposedly suggestive lineup, and the sufficiency of the evidence. Finding no error in any of these respects, we affirm.

I

On May 13, 1997, a grand jury returned a six- count indictment against Curry for charges arising out of the following robberies: the Bell Federal Bank in Homewood, Illinois on September 16, 1996; the M&I Bank in Oregon, Wisconsin on January 27, 1997; the Budgetel Motel in Matteson, Illinois on February 20, 1997; and the First Savings Bank of Hedgewisch in Lynwood, Illinois on February 21, 1997. The indictment also included Curry's alleged co-conspirators, Allan S. Brown, Charles Curry (the defendant's brother), John Q. Pulley, and LaTonya Wilder. The indictment charged that Curry organized the heists and, as necessary, recruited others to assist him, as follows: Curry robbed Bell Federal on his own; he and Pulley together robbed M&I Curry, Pulley, and Charles Curry robbed the Budgetel Motel; and Curry, Brown, and Wilder participated in the First Savings robbery.

Brown, Charles Curry, Pulley, and Wilder chose to plead guilty and to cooperate with the government, while Curry opted for a trial. There, his erstwhile colleagues Brown, Charles Curry, and Wilder lived up to their bargain with the prosecutors and testified about the robberies and Curry's leading role in them. A number of other witnesses supported their accounts. Among them was Lettie Williams, the Budgetel desk clerk on duty at the time of the robbery. Williams testified that an individual she identified as Curry approached her wearing a baseball cap with a ski mask rolled up under the cap. Initially, she believed that Curry wanted a room. As she was looking at him straight in the face and handing him a registration card, a gun fell from his sleeve onto the counter. Curry quickly pulled the ski mask down over his face and proceeded to rob the motel. Williams later identified Curry three times: from a police photo spread on the day of the robbery, from a lineup one month later, and in court. Rae Williams-Anderson, Curry's cousin, also testified. She recalled that Curry and Pulley arrived unexpectedly at her apartment, located less than half a block from the M&I Bank, on the morning of January 27, 1997. Based upon the way Curry and Pulley looked when they left, Williams-Anderson identified them as the two robbers depicted in photos taken by the bank's surveillance cameras. The jury convicted Curry of five of the six counts against him--that is, everything except the Bell Federal robbery. The court sentenced him to 295 months in prison.

II

Curry's first argument is a now-futile attempt to take advantage of the Tenth Circuit's now- vacated opinion in United States v. Singleton, 144 F.3d 1343 (10th Cir. 1998), under which a panel had held that 18 U.S.C. sec. 201(c)(2) forbids receipt of testimony by witnesses who stand to gain via immunity from prosecution or lower sentences in exchange for their cooperation. The Tenth Circuit later reversed Singleton, see United States v. Singleton, 165 F.3d 1297 (10th Cir. 1999) (en banc), and in United States v. Condon, 170 F.3d 687 (7th Cir. 1999), issued shortly before oral argument in this case, we joined the six other circuits that have unanimously rejected this contention. See id. at 688-89 (collecting cases). Condon all but disposes of Curry's argument.

Using a slight variant on Singleton, Curry also argues that the government's use of testimony offered pursuant to a plea bargain is "so severely infected with the unnatural incentives to fabricate" that it violates the protections of the Due Process Clause. Although we did not specifically address this argument in Condon, it was rejected in the case on which the Condon court relied, United States v. Barrett, 505 F.2d 1091, 1102-03 (7th Cir. 1974). Furthermore, in keeping with the Supreme Court's implicit position that the practice of plea bargaining is consistent with due process, see, e.g., Giglio v. United States, 405 U.S. 150 (1972), the courts of appeals have long rejected the notion that the testimony of cooperating witnesses is so likely to be unreliable that due process alone requires its automatic exclusion. See United States v. Ramsey, 165 F.3d 980, 988 (D.C. Cir. 1999) (collecting cases, including Barrett, supra).

III

Curry's next thrust is against the district court's decision to admit certain statements into evidence under the co-conspirator exception to the hearsay rule. See Fed. R. Evid. 801(d)(2)(E). Our review of these rulings is for plain error only, as Curry failed to object to them at trial. Rule 801(d)(2)(E) provides that an out-of-court statement made by a co-conspirator is not hearsay if the district court determines, by a preponderance of the evidence, that the declarant and the defendant were involved in an existing conspiracy and that the statement was made during and in furtherance of that conspiracy. See, e.g., United States v. Godinez, 110 F.3d 448, 454 (7th Cir. 1997).

Curry points to two specific bits of testimony that he claims were erroneously admitted: first, Charles Curry's description of what Pulley had told him about the M&I heist, and second, Wilder's testimony that Pulley had told her he and Curry "had hit some licks before" (by which, according to Wilder, Pulley meant they had committed some robberies) and it was "easy." Curry does not challenge the district court's determination that he and Pulley were involved in a conspiracy at the time the statements were made. Instead, he argues that the two statements were merely offhand comments that were not made to further the scheme. As a matter of theory, it is true that "mere idle chatter, narrative declarations, and superfluous casual remarks" are not statements made in furtherance of a conspiracy. Id., citing United States v. Johnson, 927 F.2d 999, 1002 (7th Cir. 1991). But it was up to the district court to characterize the two statements here and to assess whether or not they may have advanced the conspiracy. Taking note of the fact that the "in furtherance" requirement is satisfied by statements made to recruit other conspirators, Godinez, 110 F.3d at 454, the district court reasonably concluded that Pulley's statements to Wilder and Charles Curry were admissible "recruiting statements," rather than idle chatter. Pulley bragged to Wilder that he had easily committed robberies in the past, a description surely calculated to draw her into the scheme. Pulley's statements to Charles Curry describing the M&I robbery showed a level of trust in Charles Curry that encouraged the latter to sign on--or at least so the district court could conclude. The court was also entitled to take into account the immediate effect of Pulley's comments on his listeners: after speaking with Pulley, both Charles Curry and Wilder did join in the conspiracy. One week later, Charles Curry served as the getaway driver for the Budgetel robbery; one day later, Wilder was the getaway driver for the First Savings robbery.

IV

Curry also believes that the court committed prejudicial error when it allowed the jury to learn about Pulley's guilty plea. But, just as in United States v. Lindemann, 85 F.3d 1232 (7th Cir. 1996), Curry essentially brought this problem on himself. During cross-examination of Wilder, Curry attacked the credibility of her testimony by suggesting that she had falsely implicated him in order to obtain a favorable plea agreement. In response, the government was permitted to explain to the jury that Wilder's testimony had also implicated Pulley, and that Pulley had pleaded guilty. As a precautionary measure, the district court instructed the jury that they "may" consider Pulley's plea in evaluating Wilder's credibility and "must consider it within the light of all the evidence in the case."

Under the applicable abuse of discretion standard of review for this kind of evidentiary ruling, see United States v. Gibson, 170 F.3d 673, 680 (7th Cir. 1999), we once again find no reversible error. In Lindemann, the government was allowed to rehabilitate a witness by introducing evidence that the witness had cooperated against other subjects of the same investigation who had later pleaded guilty. The evidence was relevant because the witness's "successful participation in numerous other cases meant that at the time he was negotiating over his plea deal he had lots of information to use as bargaining chips" and thus was less likely to be lying in Lindemann's case out of self- interest. Lindemann, 85 F.3d at 1243. Curry argues that Lindemann is distinguishable because Wilder's knowledge about Pulley's activities was "inextricably intertwined" with her information about Curry. Because she couldn't help but implicate Pulley in her attempt to implicate Curry, the defense argues, she didn't have the "multiple bargaining chips" that characterized the Lindemann case.

We find the distinction unpersuasive. To the contrary, it will be common in conspiracy cases that a cooperating witness's testimony will help the government obtain more...