United States v. Earl Walker
908 F.3d 252
| 7th Cir. | 2018Background
- In 2015 two armed men committed three robberies of check-cashing/bank branches in Indiana using costumes, stolen “switch” cars, and repeated travel patterns; an anonymous tip led investigators to Duprece Jett, Damion McKissick, and Earl Walker.
- December 12, 2015: surveillance of defendants culminated in a high-speed chase and arrest of Walker (driver) and McKissick (passenger); a stolen Buick LeSabre contained masks, gloves, a backpack, duffel bag, and an airsoft pistol.
- Physical and circumstantial evidence at trial: surveillance footage of the robberies, cell‑phone location data placing Jett and McKissick near robberies, DNA on items recovered, burned items in McKissick’s yard, cash spending patterns, and incriminating recorded statements by McKissick.
- Charges: Count 1 — Hobbs Act conspiracy (18 U.S.C. § 1951(a)); Count 2 — attempted bank robbery (18 U.S.C. § 2113(a)) for December 12 events. Jury convicted all three on both counts; district court sentenced each (Jett & McKissick 293 months; Walker 72 months).
- On appeal the Seventh Circuit affirmed most rulings but held the evidence insufficient for the attempted-robbery count (no force/intimidation or entrance occurred on Dec. 12) and ordered judgment of acquittal on Count 2 and resentencing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for Count 2 (attempted robbery under § 2113(a)) | Prosecution: sufficient circumstantial evidence showed defendants were attempting another robbery on Dec. 12 | Defendants: arrested before any attempt/force; no entry or intimidation occurred on Dec. 12 | Reversed: evidence insufficient; enter judgment of acquittal on Count 2 |
| Whether Hobbs Act conspiracy requires an overt act | Government: conspiracy charge is proper without an overt-act instruction | Defendants: jury should have been instructed that an overt act was required | Held: no overt-act element for Hobbs Act conspiracy under § 1951(a); omission proper |
| Admissibility of Agent Vail’s slang interpretation (Rule 702 / dual-role concerns) | Gov: agent qualified to interpret slang; testimony helpful | Defendants: testimony was impermissible expert gloss or improperly mixed with lay testimony; Rule 702 analysis required | Held: testimony admissible; district judge’s limited errors re: dual-role testimony were harmless; but court clarifies proper procedures and jury instruction when agents testify in dual roles |
| Admissibility of Agent Guy’s identification of Jett from surveillance (open-door / Rule 701) | Gov: identification permissible because defense opened door and agent had basis to compare | Defendants: cross‑examination did not open the door to an agent identification; agent lacked sufficient familiarity | Held: admission was aggressive but harmless error given other strong evidence; no new trial warranted |
| Walker’s Bruton/severance/sufficiency claims | Walker: stationhouse recording of McKissick and joint trial prejudiced him (Bruton, Rule 14) | Government: redacted statement and limiting instruction cured Bruton; joinder appropriate given conspiratorial conduct | Held: Bruton claim fails (redactions not obviously referring to Walker and limiting instruction adequate); severance denial not an abuse; evidence sufficient for conspiracy conviction against Walker |
Key Cases Cited
- Shabani v. United States, 513 U.S. 10 (statute text governs whether overt-act element required)
- Whitfield v. United States, 543 U.S. 209 (compare statutory formulations to determine overt-act requirement)
- Bruton v. United States, 391 U.S. 123 (inadmissibility of powerful extrajudicial codefendant confessions)
- Richardson v. Marsh, 481 U.S. 200 (redaction + limiting instruction can avoid Bruton problem)
- Gray v. Maryland, 523 U.S. 185 (redactions that plainly refer to a defendant violate Bruton)
- Bravo‑Fernandez v. United States, 137 S. Ct. 352 (insufficiency ruling equivalent to acquittal; bars retrial)
- Parkhurst v. United States, 865 F.3d 509 (guidance on dual-role case-agent testimony)
- Corson v. United States, 579 F.3d 804 (Hobbs Act conspiracy analysis)
- Christian v. United States, 673 F.3d 702 (precautions for case-agent expert testimony)