UNITED STATES of America, Plaintiff-Appellee, v. Edward SEALS and Earnest D‘Marco Johnson, Defendants-Appellants.
Nos. 02-4235, 03-2483
United States Court of Appeals, Seventh Circuit
Argued Feb. 25, 2005. Decided Aug. 16, 2005.
Critics of the decision of the Uniform State Commissioners to codify the “badges” in the UFTA worried that judges might attach controlling weight to one, Frank R. Kennedy, “The Uniform Fraudulent Transfer Act,” 18 UCC L.J. 195, 201 (1986); Jeffrey L. LaBine, “Michigan‘s Adoption of the Uniform Fraudulent Transfer Act: An Examination of the Changes Effected to the State of Fraudulent Conveyance Law,” 45 Wayne L.Rev. 1479, 1492-93 (1999), or—we add on the basis of what happened in this case—to whether a majority of them are present or absent. The critics had a point.
There was another reason not to get hung up on the “badges of fraud” in this case: it is misleading to describe the issue in supplementary proceedings to collect a judgment as “fraud.” The doctrine of “fraudulent conveyance” has specific elements, as do the alter ego and continuation rules, that differ from normal usages of the word “fraud,” which is therefore best avoided. In particular, the doctrine and rules do not require proof of fraudulent intent—though there was plenty of that here.
The judgment is reversed with directions to enter judgment for the plaintiff in accordance with this opinion.
REVERSED AND REMANDED.
Gabriel Aizenberg (argued), Sidley, Austin, Brown & Wood, Chicago, IL, for Earnest D. Johnson, Defendant-Appellant.
Deirdre A. Durborow (argued), Office of the United States Attorney, Fairview Heights, IL, for Plaintiff-Appellee.
Before BAUER, POSNER, and RIPPLE, Circuit Judges.
BAUER, Circuit Judge.
A jury found defendants-appellants Edward Seals and Earnest D‘Marco Johnson guilty of one count of aggravated bank robbery in violation of
I. Background
On June 11, 2001, four masked, African-American men in camouflage fatigues robbed the Metro East Credit Union (“Credit Union“) in Cahokia, Illinois. An investigation led to the arrests of Jonah Paschal and Rasheed Townsend. Both men gave statements and proffers admitting their involvement, explaining the planning and preparation for the robbery, and identifying their fellow robbers as co-de-
On June 17, 2002, about one month before the trial, the district court ordered the government to produce police reports pertaining to another bank robbery that had occurred on June 25, 2001, in New Baden, Illinois. Seals’ counsel claimed that the defense needed the New Baden robbery reports to explore whether a similar modus operandi existed between the two robberies. New Baden is 31 miles from Cahokia. The bank there was robbed by five African-American men wearing disguises; one wore a woman‘s dress and another was dressed as a construction worker. The robbers were armed with handguns, and they directed a bank employee to obtain cash and hand it over at gunpoint. The perpetrators of the New Baden robbery were caught and convicted. See United States v. Wingate, Criminal No. 01-30103-MJR (S.D.Ill.2001). The government produced the reports but later made a motion in limine to exclude evidence of the New Baden robberies from trial. On August 20, 2002, the district court granted the government‘s motion; it ruled that there was not enough similarity between the two robberies to make the New Baden evidence relevant and that the evidence would confuse the jury.
The case proceeded to trial, where Paschal and Townsend testified as to how the robbery of the Credit Union in Cahokia was planned and executed. Paschal identified Seals and Johnson at trial, stating that he had been friends with Johnson for several years and had known Seals since high school. Johnson, he recalled, introduced him to Townsend. The four of them agreed to rob a bank. In furtherance of that end, he, Johnson, and Seals stole a utility van with “Weir Cooling” printed on the side. Detective Michael Bailey testified that the owners of the Weir Cooling van reported it stolen or missing on or about June 11, 2001, the day of the robbery.
Paschal testified that on the day of the robbery, the four men developed their plan at his house. He recalled that his cousin, Tiffany Paschal, who also lived at the house, was present, and that he told her they intended to rob a bank. Jonah Paschal provided everyone with the military fatigues they wore during the robbery. Townsend supplied the rifle and handguns they used, along with a blond wig.
Paschal recalled that he and the others drove the stolen van to the Credit Union. He and Johnson covered their faces with nylons, and then the four men entered the bank. Paschal and Seals stayed in the lobby during the robbery; a surveillance camera took their photograph, and he identified Seals and himself in one of the pictures. Townsend and Johnson jumped the teller counter. When they returned, they had metal containers and zipper bags in their hands. The four men then ran out to the van and drove off. Both Detective Bailey and Credit Union customer Michelle Accord testified that the robbers escaped in a Weir Cooling van.
Paschal testified that they drove to the south end of East St. Louis, where they abandoned the van in some tall weeds and bushes. They removed their fatigues, emptied the metal containers of money, and hid the rifle used during the robbery. They then walked to a house owned by Townsend‘s grandmother to split up the money. Paschal stated that he, Seals, and Johnson each took $10,000 of the robbery proceeds, and Townsend received the balance. The Credit Union determined that $39,976.15 was stolen.
Finally, Paschal testified that on June 13, 2002, while he was being held in the Marshal‘s holdover cells at the courthouse, Seals threatened to kill him or his family if he testified. Three other inmates—John Mielke, Frederick Evans, and Undra Seawood—testified at trial that they overheard the threat, and all three identified Seals as the person who uttered it. Seawood further testified that he later spoke with Seals, who confided, “If the two guys would have just kept their mouth closed, they wouldn‘t have no case on [me].”
Townsend‘s testimony at trial supported Paschal‘s version of the events. He testified that during the summer of 2001 he was friends with Seals and Johnson, who introduced him to Paschal. The morning of the robbery, Johnson and Paschal picked him up in a stolen van, and together they picked up Seals. He acknowledged that he provided the guns, ammunition, and blond wig that were used in the robbery. Townsend stated that they drove to Paschal‘s house to plan the robbery, that Tiffany Paschal was there, and that she saw the four leave in the van, dressed in fatigues. During the robbery, he and Johnson retrieved metal containers from a safe in the back of the Credit Union. Townsend identified Johnson wearing a wig in a surveillance camera photograph taken at the Credit Union, and identified Seals and Paschal in other images. He also identified both Seals and Johnson in court. He stated that they left the van in East St. Louis and walked to his grandmother‘s house to divide the money.
Townsend recalled that some time after the robbery he spoke with Johnson, who told him he had burned the van. Johnson also told him that he had bought a Bonneville with the proceeds from the robbery. In addition, Townsend saw Seals driving a white Oldsmobile that he had not known Seals to have owned before the robbery. Finally, Townsend stated that Seals threatened him when they were being held with other prisoners in the Marshal‘s holdover cells. Seals told him that if he testified against him he would kill Townsend‘s family. Inmates Mielke and Seawood testified that they overheard Seals make threatening remarks to an African-American male who fit Townsend‘s description.
Tiffany Paschal also testified at trial. She confirmed that she lived in the same house as her cousin, Jonah Paschal, and that she recognized Seals and Johnson as friends of his; she also identified Seals and Johnson in court. On June 11, 2001, she came home from school to find Jonah Paschal, Seals, and Johnson with a smaller, light-skinned African-American male who lived near the Princess Motel.1 Jonah Pascal told her they were going to rob a bank. She testified to having seen a blond wig in the room, and that the four men left the house dressed in fatigues. She saw them drive away in a van with writing on its side, which at trial she identified as a Weir Cooling van.
Jerry Dinges, who owns a used car lot in Belleville, Illinois, also testified at trial. He stated that a couple of days before June 12, 2001, a young, African-American man came to his business to look at automobiles and discuss financing. The man was looking at a 1987 Oldsmobile Model 98. Dinges told the man that he did not provide financing, and the man replied that he would be back later. On June 12, 2001, the man returned with his mother, purchased the Oldsmobile with $2,500 cash, and drove the car off the lot that day. Dinges identified the man as Seals.
Ghassan Saffaf, who operates “Brotherhood Motors,” a used car lot in St. Louis, Missouri, also testified for the government. He stated that on June 11, 2001, two African-American men came to look at cars. One of them made a $1,500 cash down payment for a 1986 Chevrolet Monte Carlo. At trial, Saffaf identified the name Ernestine Johnson of Cahokia, Illinois, as the purchaser on the bill of sale and the name D‘Marco Johnson in the signature block. The second man provided Saffaf with a U.S. Treasury check made out to Terry Taylor as proof of income. Saffaf stated that the purchaser of the Monte Carlo returned a few days later because the car had broken down and paid an additional $2,200 in cash to exchange it for a silver Bonneville. The bill of sale for the Bonneville had the name Earnest D. Johnson on it.
Terry Taylor testified at trial. He stated that he is a barber who lives in East St. Louis and that he knows Johnson, Seals, Paschal, and Townsend. On the night before the robbery, Johnson, Townsend, and Paschal stopped by his house in an old work van. On the day of the robbery, sometime between 3:00 p.m. and 5:00 p.m., Johnson and Seals stopped by again. After Seals left, Taylor and Johnson took the Metro Link to Brotherhood Motors in St. Louis, where Johnson bought a used Monte Carlo. He provided a U.S. Treasury check as proof of income for Johnson. Taylor also testified that he was incarcerated from May 11, 2002, until July 23, 2002, during which time he cut hair. He cut Johnson‘s hair on at least one occasion, during which time Johnson passed him notes that outlined a false version of the events the day of the robbery and suggested that he “just keep it plain and simple and don‘t remember too much.” These notes were admitted into evidence, and a handwriting expert testified that Johnson wrote them.
On August 23, 2002, the jury found Seals and Johnson guilty of the bank robbery and firearm charges. The district court sentenced the defendants and ordered restitution. The defendants timely appealed.
II. Discussion
Seals and Johnson first challenge the district court‘s decision to exclude evidence pertaining to the New Baden bank robbery. They argue that the district court abused its discretion by applying the wrong legal rule and that this error was not harmless. They also contend that the district judge violated their Sixth Amend-
A. Defendants’ Evidentiary Challenge
This court reviews a district court‘s evidentiary decisions for abuse of discretion. United States v. Reed, 259 F.3d 631, 634 (7th Cir. 2001). Generally, we afford great deference to a district court‘s determinations in this area. United States v. Wilson, 307 F.3d 596, 601 (7th Cir. 2002) (citing United States v. Walton, 217 F.3d 443, 450 (7th Cir. 2000)). If the district court‘s decision rested on an error of law, however, then it is clear that an abuse of discretion has occurred because it is always an abuse of discretion to base a decision on an incorrect view of law. United States v. Mietus, 237 F.3d 866, 870 (7th Cir. 2001) (citing Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990)); see also United States v. Wesela, 223 F.3d 656, 664 (7th Cir. 2000). We review the district court‘s determination of the appropriate legal standard de novo. United States v. Cotnam, 88 F.3d 487, 498 (7th Cir. 1996).
The district court in the instant case did not reference any case law involving reverse 404(b) issues in its analysis. Rather, the district judge stated that Huddleston v. United States, 485 U.S. 681, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988), “instructs what I need to look at in terms of 404(b) evidence and the ability of the Government to bring out ‘prior bad acts.‘” Trial Transcript, 9:8. Huddleston involved the admissibility of standard 404(b) evidence. The district court explained:
One of the prongs in the Huddleston case requires a similarity of the prior bad act such that it would be fair to use it in the instant case. It seems to me that that same logic applies in determining whether or not the defense can bring out a separate crime committed by separate individuals to allege that those individuals are the ones who committed the instant crime. I am going to hold the defense to the same standard that I held the Government, and that is there has to be enough similarity that the jury is not
confused and that the evidence becomes relevant.
Id. at 9:8-9 (emphasis added). Contrary to the district judge‘s statement, the defense is not held to as rigorous of a standard as the government in introducing reverse 404(b) evidence. Agushi, 196 F.3d at 760 (citing Stevens, 935 F.2d at 1404). By applying the wrong legal standard, the district court abused its discretion. Mietus, 237 F.3d at 870.
This is not to say that the evidence proffered by Seals and Johnson should have been admitted. It was irrelevant, and thus inadmissible.
The defendants rely heavily on the fact that the robberies occurred two weeks and 31 miles apart. Thirty-one miles might not appear very far on a globe, but in practical terms these two robberies occurred in separate counties. If this is all it took to admit evidence of other crimes, district courts would be reluctant to exclude evidence of dissimilar bank robberies in neighboring counties for weeks thereafter. Although we appreciate the fact that the legal standard for admitting reverse 404(b) evidence is relatively lenient, the evidence must still be relevant. Here, it was not.
Even if the evidence involving the New Baden robbery should have been admitted, its exclusion was harmless in light of the overwhelming evidence presented by the government at trial. We employ the harmless error standard because the defendants preserved their objection on this issue when they challenged the government‘s motion in limine. See
The defendants argue that the exclusion of evidence involving the New Baden robbery must have had a substantial impact on the jury because it denied them the primary evidence in support of their defense. In United States v. Byrd, 208 F.3d 592 (7th Cir. 2000), we recognized that “[e]xclusion of evidence which is the only or the primary evidence in support of a defense is deemed to have had a substantial effect on the jury.” Id. at 594. In Byrd, the defendant, a federal prisoner, was convicted of assaulting a police officer who was trying to secure him in the back seat of a squad car. Id. at 593. His defense at trial was that the shackles he wore made attacking the officer impossible. Id. at 594. The district court denied his request to present his shackles and restraints to the jury. Id. at 595. We reversed, holding that because the evidence was central to his defense, its exclusion affected his substantial rights and was not harmless. Id. at 596. In so ruling, we emphasized that the holding should be construed narrowly in light of the “peculiar facts of this case.” Id.
Byrd is distinguishable from the instant case. Perhaps most importantly, the evidence pertaining to the New Baden robbery was neither the only nor the primary evidence in support of the defendants’ claim that they were not present at the robbery. Seals called three witnesses who testified that he was at a friend‘s birthday party at the time of the robbery. His mother, who was among these witnesses, also testified that she bought the used Oldsmobile for him the day after the robbery as a gift. By contrast, the defendant in Byrd called no witnesses. Although Johnson declined to testify on his own behalf or call witnesses, he tried to recruit Terry Taylor to provide a false alibi.2 What is more, he stood to benefit from statements made by Seals’ witnesses which challenged the government‘s assertion that he and Seals were together the day of the robbery.
Furthermore, in Byrd the only evidence that the defendant assaulted the police officer came from the police officer himself and his partner, both of whom the court noted had a history of unpleasant dealings with the defendant. That was not the case here. Seals and Johnson argue that Paschal and Townsend testified out of self-interest, but they cannot say the same about the many other witnesses whose testimony corroborated their stories. In
B. Defendants’ Sentencing Challenges
Both Seals and Johnson point out that their sentences and the amounts they were ordered to pay in restitution were based upon judge-made findings of fact and argue that these findings violated their Sixth Amendment rights as interpreted in Booker. Seals’ sentence of 360 months’ imprisonment included a term of 276 months for the count of aggravated robbery and a term of 84 months for the count of using a firearm during the robbery, to be served consecutively. Johnson‘s sentence of 162 months’ imprisonment included a term of 78 months for the count of aggravated robbery and 84 months for the count of using a firearm during the robbery, to be served consecutively. Both defendants’ sentences for the first count included enhancements based on the district court‘s findings of fact that they had robbed a financial institution, acquired over $10,000 in proceeds from the robbery, and obstructed justice. As for the second count, the Sentencing Guidelines directed the district judge to impose the statutory minimum for the offense, which he did in both of their cases. In addition, the district judge determined that Seals qualified as a career offender under § 4B1.1 of the Sentencing Guidelines and adjusted his sentence accordingly. Because neither defendant raised a challenge below invoking the Sixth Amendment or the line of cases that began with Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), we review for plain error. United States v. Olano, 507 U.S. 725, 734-35, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993).
We begin by addressing Seals’ challenges to the district judge‘s finding that he qualified as a career offender under
Seals also contends that his career offender sentence must be vacated because the jury did not find that he was 18 years old at the time of the robbery, which is a prerequisite for application of § 4B1.1.
Both defendants also contend that the district court‘s order of restitution violated their Sixth Amendment rights because Booker requires that juries, not judges, determine restitution. We disagree. This court has ruled that the Sixth Amendment does not apply to restitution because it is a civil remedy, and one for which there is no statutory maximum. United States v. George, 403 F.3d 470, 473 (7th Cir. 2005). Therefore, the district court‘s order of restitution was unaffected by Booker.
III. Conclusion
For the reasons stated above, we AFFIRM the district court‘s decision to grant the government‘s motion in limine and its order of restitution, but order a LIMITED REMAND with respect to the defendants’ sentences.
POSNER, Circuit Judge, concurring.
I agree that the convictions should be affirmed, but only because the exclusion of evidence about the other bank robbery was a harmless error in view of all the other evidence of the defendants’ guilt. I don‘t agree that the evidence was irrelevant. I also think that more needs to be said about “reverse 404(b) evidence“—an unhappy formula.
Within a two-week period two bank robberies were committed within 31 miles of each other in a rural area of southwestern Illinois. Besides proximity in time and space (31 miles and 2 weeks might be the perfect distance/interval between robberies by the same gang because immediately after an armed bank robbery other banks in the immediate vicinity would be worried and increase their protective measures) and the fact that the target in each robbery was a bank, both robberies took place in towns rather than cities (the robbery of which the defendants were accused took place in Cahokia, population 16,000, and the other in New Baden, population 3,000). Both involved several robbers rather than just one and in both the robbers were black and brandished guns and, though they were male, one robber was disguised as a woman (wearing either a woman‘s wig or a dress). And on both occasions the robbers escaped in a recently stolen van. The defendants in our case wanted to introduce the evidence of the other robbery to show that the other gang might have perpetrated the robbery of which they were accused.
They were entitled to do this if the evidence was relevant,
Evidence is relevant, and therefore not barred by Rule 402, if it increases the strength of the case of the party who wishes to present the evidence at trial.
No single one of the similarities between the two robberies (the race of the perpetrators, the use of a stolen van as a getaway vehicle, etc.) established a high likelihood that the same gang committed both. But to the extent that the similarities were independent of each other, the probability that all were coincidences was much smaller than the probability that each one, taken separately, was. The probability that a series of independent observations are all false is the multiple of the probability that each is. Suppose the probability that each of five similarities between the two robberies was not due to the robbers being the identical people was 90 percent; nevertheless the probability that all five similarities were not due to their being identical would be only 50 percent. The numbers are arbitrary; the principle is not: a number of weak similarities if they point in the same direction can constitute respectable evidence. The majority‘s reason for denying the “relevance” of the evidence in this case—that the similarities between the New Baden robbery and the Cahokia robbery are “generic“—has to do not with relevance but with the probative value of the evidence.
By making relevant evidence excludable only if its probative value is substantially outweighed by competing considerations such as the risk that the evidence will confuse the jury, Rule 403 establishes a presumption in favor of the admissibility of relevant evidence. E.g., United States v. Krenzelok, 874 F.2d 480, 482-83 (7th Cir. 1989); Rubert-Torres v. Hospital San Pablo, Inc., 205 F.3d 472, 478-80 (1st Cir. 2000); United States v. Terzado-Madruga, 897 F.2d 1099, 1117 (11th Cir. 1990). The district judge did not rule that the presumption was rebutted; misled by Rule 404(b), he never mentioned Rule 403. I find nothing to indicate that the presumption was rebutted. The jury could no more have been confused by the evidence concerning the New Baden robbery than it could have been confused by an alibi witness who testified that the defendants were somewhere else when the Cahokia bank was robbed. The evidence that the defendants wanted to present was similar to alibi evidence; it tended to show that they were somewhere else when the bank was robbed because the robbery was committed by another gang. That is better evidence than an alibi; if believed, it solves the crime.
Of course at some point the resemblance between two crimes becomes so attenuated that a jury would scratch its collective head in puzzlement were it given evidence of a second crime to cogitate over—suppose the defendants had argued that the modus operandi of the Cahokia robbers was identical to that of the robbery of a bank in Yokohama in 1946. But the proximity and resemblance of the two crimes were sufficiently close that a jury would have realized why the New Baden crime was being injected into the case and would have weighed it rationally against the other evidence. E.g., United States v. Crosby, supra, 75 F.3d at 1348-49. It is short-sighted of the government to deny this, since if the defendants had committed the New Baden robbery the government would undoubtedly be arguing that the evidence of that robbery should be admissible in the present case to prove the defendants guilty of the Cahokia heist, under the identity and modus operandi exceptions to Rule 404(b)‘s exclusion of prior-crimes evidence when offered to show guilt rather than innocence. E.g., United States v. Robinson, 161 F.3d 463, 466-68 (7th Cir. 1998); United States v. Moore,
The less probative a piece of evidence is, and thus the less the benefit to the truth-determining function of the jury of admitting it at trial, and the more trial time the presentation of the evidence would consume and the likelier the evidence would be to confuse the jurors by distracting them from more probative evidence, the stronger the argument for exclusion. United States v. Urfer, 287 F.3d 663, 665 (7th Cir. 2002); Coleman v. Home Depot, Inc., 306 F.3d 1333, 1343-47 (3d Cir. 2002); 22 Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice and Procedure: Evidence § 5216 (1978 ed. & 2004 supp.). Evidence that takes time to present and digest but contributes little to the jurors’ understanding of the real issues in the case is a kind of noise, obstructing rather than advancing understanding. Manuel v. City of Chicago, 335 F.3d 592, 596-97 (7th Cir. 2003); United States v. Reed, 259 F.3d 631, 634-35 (7th Cir. 2001); United States v. Johnson, 605 F.2d 1025, 1030 (7th Cir. 1979); United States v. Layton, 767 F.2d 549, 551, 556 (9th Cir. 1985). It should be kept out. But the trial in this case lasted only four days and the evidence concerning the New Baden robbery would have required only an hour or two to put before the jury.
Preventing a defendant from offering relevant evidence on the basis of vague and implausible concerns with jury confusion and the burden of a longer trial violates Rule 403. The error is especially clear when the balance required by Rule 403 is struck by the court of appeals without the benefit of the district judge‘s view of the matter; review of district judges’ rulings on the admissibility of evidence is deferential precisely because the trial judge has a better opportunity to assess the particular jury‘s ability to assimilate particular types of evidence. United States v. Van Dreel, 155 F.3d 902, 905-06 (7th Cir. 1998); United States v. Russell, 971 F.2d 1098, 1104 (4th Cir. 1992). For appellate judges to exercise discretion vested in district judges is particularly gratuitous when as in this case there is a perfectly adequate alternative ground of decision: the error in excluding the New Baden evidence was harmless because the evidence of the defendants’ guilt was crushing. The two other members of the gang that robbed the Cahokia bank, Paschal and Townsend, pleaded guilty and testified against our two defendants, Seals and Johnson, furnishing detailed accounts of the role each of the two had played in the offense. A relative of Paschal testified that on the day of the robbery she had seen all four leaving her house together carrying guns and wearing fatigues (the attire of the Cahokia robbers), that Paschal had told her they planned to rob a bank, and that he had returned to the house later with wads of cash. Seals and Johnson bought cars for cash shortly after the robbery and neither of them offered a plausible alternative explanation for where they‘d gotten the cash. Seals‘s mother testified that she had bought one of the cars as a present for her son, but on cross-examination admitted to earning only $8 an hour, and though the sales invoices listed her as the purchaser of the car the salesman testified that the actual purchaser had been a young black male.