USA v. May, s. 99-2785 and 99-2880

• Decision Date: 06 June 2000
• Docket Number: Nos. 99-2785 and 99-2880,s. 99-2785 and 99-2880
• Citation: 214 F.3d 900
• Parties: (7th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. KELLY JO MAY and LEE TERRY, Defendants-Appellants
• Court: U.S. Court of Appeals — Seventh Circuit

Page 900

214 F.3d 900 (7th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. KELLY JO MAY and LEE TERRY, Defendants-Appellants.

Nos. 99-2785 and 99-2880

In the United States Court of Appeals For the Seventh Circuit

Argued January 12, 2000

Decided June 6, 2000

Appeals from the United States District Court for the Central District of Illinois. No. 98 CR 20061--Michael P. McCuskey, Judge.

Before POSNER, Chief Judge, COFFEY and RIPPLE, Circuit Judges.

COFFEY, Circuit Judge.

On October 8, 1998, a four- count indictment was filed in the Central District of Illinois charging Kelly Jo May and Lee Terry with events arising out of the armed bank robbery of the Champaign County Schools Employees Credit Union in Champaign, Illinois.¹ After the juries² returned guilty verdicts against both defendants, the judge sentenced May to 147 months' imprisonment, five years' supervised release, a $300 special assessment, and restitution in the amount of $11,038.75.³ The judge then sentenced Terry to life imprisonment, a $300 special assessment, and restitution also in the amount of $11,038.75.⁴ On appeal, both defendants- appellants argue that the trial judge erred in denying their motion to suppress the evidence seized from their residence. May also argues that the court erred in allowing the jury to continue its deliberations, at least without conducting a hearing, after the district court judge received a note from the jury foreperson suggesting that a juror may have been a crime victim.

We affirm.

I. BACKGROUND

On September 14, 1998, at approximately 2:00 p.m., when only three employees were present in the bank,⁵ Terry and May entered the Credit Union in Champaign, Illinois. The two armed defendants approached bank employees, Ciara Bradley and Tasha Jenkins, and May ordered Bradley to "put the money in the bag." Terry then walked down the hallway to Heather Winkleman's office, brought her to the front, and told Bradley and Jenkins to open all the teller drawers. Winkleman then asked Terry if he also wanted the money from the vault and he responded that he did. The two went back into Winkleman's office and retrieved the vault keys; Winkleman opened the vault and handed the money to the two perpetrators.⁶ Terry and May left the bank with $11,038.75.

After leaving the bank, Terry and May went to a nearby Illinois power station and removed the clothing worn during the robbery, poured gasoline on the clothes, and ignited them. Thereafter, the two then went to the General Auto Market in Urbana, Illinois, and Terry made a $4,000 cash down-payment on a 1995 GMC van.

On September 15, 1998, the Champaign, Illinois, Police Department (CPD) received an anonymous tip that it was Terry who had robbed the bank and that a female accompanied him during the bank robbery. On September 16, 1998, CPD received another anonymous tip stating that May and her boyfriend "Teddy" had robbed the bank, and that they had just bought a van.

The next day, September 16, 1998, a detective went to Terry's and May's residence and saw a 1995 GMC van. Upon inspection of a sticker on the van, the officer discovered that it had just been purchased from the General Auto Market in Urbana, Illinois. The detective proceeded to the dealership and learned that Terry and May had purchased the van on September 14th, just a few hours after the robbery, with a $4000 cash down- payment.

The dealership informed the detective that Terry's and May's $4000 down-payment was deposited in the night deposit-box at First of America Bank located at the Meijer Store in Champaign, Illinois. Police officers were later able to retrieve and examine the deposit and found fourteen $20 bills with serial numbers that matched the recorded bait money taken during the robbery.⁷

On September 16, 1998, based on the information described above, a federal arrest warrant for Terry was issued. At this time, federal investigators learned that the Illinois State Police had obtained a search warrant for Terry's and May's residence in Champaign on an unrelated drug matter. While serving both the state search warrant and federal arrest warrant,⁸ officers recovered $1,186 cash (three $20 bills were bait money) and five grams of marijuana, and Terry was taken into custody.

Kenneth Faust, who also resided with Terry and May, was interviewed by police officers and informed them that a few days before the search, he had seen a gun in a small blue diaper bag in one of the bedrooms of the residence, and that Terry was "touchy" about people going near a shed located behind the residence. He further stated that Terry and May had recently complained about being broke and that they now were spending a lot of money.

Based on Faust's statements, officers obtained a federal search warrant for the shed.⁹ Once inside the shed, officers located a blue diaper bag which contained two loaded weapons, a .32 caliber H&R revolver and a .357 Magnum S&W revolver. Officers also discovered additional rounds of ammunition.

Police officers also interviewed Terry, who denied any involvement in the robbery. However, two days later, on September 18, 1998, May was interviewed and she admitted that she and Terry committed the robbery and that both of them were armed, at the time of the robbery, with the weapons found in the shed. She further confirmed that the two had used the money from the robbery to make the down-payment on the van; she explained that she was having financial problems and when she mentioned robbing a bank, Terry told her that it could be done and that he even knew of a good place to rob.

Before going to trial on charges stemming from the Credit Union robbery, Terry and May filed a motion to suppress the currency seized at their residence based on the allegation that the state search warrant did not authorize the seizure of the money. As recounted earlier, investigators, after obtaining a federal arrest warrant for Terry for the bank robbery learned that a local drug task force had obtained a state search warrant for Terry's and May's residence. In part, the state search warrant authorized the search for and the seizure of:

Any substance of any color which purports to be cocaine or any of its derivatives; all paraphernalia of any kind, including, but not limited to, scales, packing material such as plastic bags and twist ties, and cutting agents, used for the manufacture or distribution of cocaine; all monies found in close proximity to the aforesaid items . . . .

Terry and May argued that because no cocaine was discovered at their residence, the police were without the authority to seize the money and it should therefore be suppressed.

The judge rejected the defendants' argument, stating:

This court specifically finds that the officers investigating the credit union robbery would have sought the federal search warrant even if the currency had not been seized. The federal search warrant authorized a search of Terry's residence and the metal shed for evidence related to the Credit Union robbery, including "United States Currency which may have been taken in the robbery." The [money] would have been recovered in executing the federal search warrant. Accordingly, the federal search warrant supplied an independent source for the seizure of the money. This court finds that the [money] was "rediscovered" in a legal search supported by a valid search warrant, and the evidence need not be suppressed.

May and Terry were subsequently tried before separate juries, and during jury deliberations at the close of May's trial, the jury foreperson sent the following note to the trial judge:

We are having some problems. One of the jurors keeps mentioning "Have you ever had a .357 magnum put in your face." He said he had and it was scary. He never mentioned he was a victim of a crime. This is bothering other jurors.

The judge brought the note to the attention of both counsels and the following discussion occurred:

AUSA: I think the note is ambiguous, Your Honor. I mean, if there's a suggestion that somebody didn't tell the truth during jury qualification, I don't think that's accurate because it doesn't say--you could have a gun stuck in your face for a variety of reasons.

But, I think it's-- JUDGE: That's true. You could have it in play.

AUSA: Right. In a shooting range.

JUDGE: Right.

AUSA: I mean, you wouldn't want someone sticking one in your face. And it doesn't say it's in the course of a crime.

JUDGE: Right.

AUSA: So, that suggestion, I think, is we don't know.

Even more fundamentally, this intrudes into the deliberative process of the jurors. . . . They've raised a concern. I think what we should do is say, "Thank you for your concern. Please continue deliberating."

They haven't raised any--they haven't asked for anything. They haven't said they are having difficulty, or this is impeding their ability to reach a verdict. I think we should acknowledge the fact that we've got their note, that we share their concern, and please continue deliberating. That would be my suggestion.

COURT: Mr. Schurter [defense counsel].

* * *

SCHURTER: I guess I would have to concur with [the AUSA], though, in that I don't--it doesn't sound to me like it asks for any particular relief; and not knowing what they really had in mind, I suppose any gratuitous comments from the Court could be either helpful or harmful to either side. And so I, I don't know.

I, I mean, I understand obviously it's not appropriate to have an ongoing conversation with the jurors by way of the notes. But, but we--on the defense side, we do have a serious concern if, if the, if the, if there is a juror in there who didn't answer the Court's questions truthfully and that's what they're saying, then we really are concerned.

COURT: The Court appreciates comments of counsel and believes that the appropriate way to handle it at this time is to, one, acknowledge the note and, two, to respond in a manner that the Court believes is...