United States v. Foster
652 F.3d 776
| 7th Cir. | 2011

Background

  • Napoleon Foster was convicted of armed robbery of a financial institution and related firearms offenses for a 2006 credit union robbery in Illinois, with Hill and Anderson as masked robber accomplices and Hill as the Government’s lead witness.
  • Foster allegedly planned the robbery, provided firearms, and helped recruit Hill’s accomplices; Hill and Anderson testified that Foster supplied inside information, the getaway car, and the weapons.
  • Anderson testified pursuant to a plea agreement corroborating Hill’s testimony that Foster had orchestrated the robbery and benefited from it.
  • Foster challenged jury selection (Rule 24), evidentiary rulings (including 404(b) and hearsay issues), insured-status evidence, civil-rights restoration defenses, and sentencing under the Armed Career Criminal Act (ACA).
  • The district court sentenced Foster to 284 months and the Seventh Circuit affirmed, holding no reversible error in the challenged issues and upholding the ACA-based sentence.
  • The opinion discusses waiver of Rule 24 procedures, admissibility of 404(b) evidence tying the check-cashing scheme to the robbery, admissibility of a recorded conversation and a witness’s prior identification, sufficiency of evidence of NCUA insurance, civil-rights restoration defenses, and whether Foster qualifies as an armed career criminal.

Issues

Issue Plaintiff's Argument Defendant's Argument Held
Rule 24 jury-selection waiver validity Foster argues Rule 24(c)(4) violated for alternate jurors and seating order Foster did not waive, or improperly waived, Rule 24 protections Waiver valid; no reversible error; district court’s waiver procedure upheld
Admission of 404(b) evidence linking check fraud Check-cashing scheme admissible as intrinsic or 404(b) to show relationship Evidence unduly prejudicial and not sufficiently similar Admissible under Rule 404(b) as non-propensity and sufficiently probative to show relationship and motive
Hearsay and confrontation with recorded talk Recording of Anderson-Williams conversation improperly admitted Guardian of confrontation rights violated because Williams did not testify Recordings properly admitted as non-hearsay under 801(d)(1)(B) and cross-examination opportunity provided
Photographic identification evidence Photospread identification admissible to prove ownership of Cadillac Defendant not cross-examined adequately about array Identification admissible under Rule 801(d)(1)(C) with opportunity for cross-examination
Civil-rights restoration and ACA sentencing Restoration could negate 18 U.S.C. § 922(g)(1) and ACA predicates Restoration defense not proven; misapplication of restoration rules Prosecution need not prove restoration at §922(g)(1) stage; AFFIRMED as ACA predicate
Evidence of insurance status of Acme NCUA certificates show Acme insured at robbery Evidence insufficient without showing contemporaneous validity Sufficient evidence that Acme was federally insured at robbery; conviction sustained

Key Cases Cited

  • United States v. Mendoza, 510 F.3d 749 (7th Cir. 2007) (Rule 24 discretionary but not fully delegated; waivers scrutinized)
  • United States v. Delgado, 350 F.3d 520 (6th Cir. 2003) (juror selection procedures and discretion in district courts)
  • United States v. Patterson, 215 F.3d 776 (7th Cir. 2000) (Rule 24(c) violation; harmless error in part)
  • United States v. Gorman, 613 F.3d 711 (7th Cir. 2010) (abandoned 'inextricably intertwined' doctrine; clarified 404(b) use)
  • United States v. Conner, 583 F.3d 1011 (7th Cir. 2009) (pre-Gorman framework for 404(b) admissibility)
  • United States v. Hicks, 635 F.3d 1063 (7th Cir. 2011) (multifactor test for 404(b) probative value vs prejudice)
  • United States v. Vargas, 552 F.3d 550 (7th Cir. 2008) (similarity in 404(b) analysis depends on purpose)
  • United States v. Torres, 977 F.2d 321 (7th Cir. 1992) (case-by-case analysis of 404(b) similarity)
  • United States v. Wheeler, 540 F.3d 683 (7th Cir. 2008) (explains MFU/less similarity for purposes other than MOOU)
  • United States v. Smith, 103 F.3d 600 (7th Cir. 1996) (MO/related act admission standards under 404(b))
  • United States v. O'Malley, 796 F.2d 891 (7th Cir. 1986) (prior identification admissibility)
  • United States v. Brink, 39 F.3d 419 (3d Cir. 1994) (identification testimony via prior arrays)
  • United States v. LeBlanc, 612 F.2d 1017 (6th Cir. 1980) (prior-consistent statements foundation)
  • United States v. Cherry, 938 F.2d 748 (7th Cir. 1991) (opening statement and impeachment of credibility)
  • United States v. Vitrano, 405 F.3d 506 (7th Cir. 2005) (civil-rights restoration as defense; burden-shifting)
  • United States v. Buchmeier, 581 F.3d 561 (7th Cir. 2009) (civil-rights restoration and firearms context)
  • Custis v. United States, 511 U.S. 485 (1994) (collateral attack limits on prior convictions for ACA/§922(g))
  • Gant v. United States, 627 F.3d 677 (7th Cir. 2010) (burden to prove civil-rights restoration under 921(a)(20))
  • Wright, 48 F.3d 254 (7th Cir. 1995) (rejection of argument to exclude older convictions under 924(e))
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