(1) both good cause for his failure to raise the claims on direct appeal and actual prejudice from the failure to raise those claims, or (2) that the district court's refusal to consider the claims would lead to a fundamental miscarriage of justice." McCleese v. United States, 75 F.3d 1174, 1177 (7th Cir. 1996) (citing Reed v. Farley, 512 U.S. 339, 114 S. Ct. 2291, 129 L. Ed. 2d 277 (1994)).
Hunter did not assert any of the arguments in the instant petition in his direct appeal to the Seventh Circuit, so these arguments are defaulted unless one of the two exceptions applies. Hunter believes he qualifies for the cause and prejudice exception because his trial and appellate counsel were constitutionally ineffective.
To prove ineffective assistance, the defendant "must establish that his attorney's performance fell below an objective standard of reasonableness and that he was prejudiced by his attorney's error such that the result of the proceeding was rendered fundamentally unfair or unreliable." Mason v. Godinez, 47 F.3d 852, 855 (7th Cir. 1995) (citing Lockhart v. Fretwell, 506 U.S. 364, 113 S. Ct. 838, 842, 122 L. Ed. 2d 180 (1993) and Strickland v. Washington, 466 U.S. 668, 687-88, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984)). Ineffective assistance of counsel, if proven, can constitute "cause" for a procedural default. See United States ex rel Simmons v. Gramley, 915 F.2d 1128, 1132 (7th Cir. 1992) (citing Murray v. Carrier, 477 U.S. 478, 488, 91 L. Ed. 2d 397, 106 S. Ct. 2639 (1986)). Whether there was prejudice for purposes of avoiding a procedural default is intertwined with the question of whether a petitioner has shown ineffective assistance of counsel: both require us to determine whether counsel's putative errors affected the outcome. Accordingly, we discuss Hunter's claims below and conclude that they are meritless; as a result, not only has he failed to show prejudice--and thus fails to avoid procedural default of his constitutional claims--but in the alternative, his claims would fail on the merits even absent a procedural bar.
Hunter argues that the ineffectiveness of his trial and appellate counsel manifested itself in their failure to object to (or appeal from) five different errors at trial:
(1) improper jury instructions regarding liability under § 924(c); (2) unreliable photo-spread identifications and related in-court testimony regarding his participation in various robberies; (3) unconstitutional restrictions on his ability to cross-examine witnesses; (4) violation of the Double Jeopardy Clause; and (5) the unconstitutionality of U.S.S.G. § 2K2.4. We consider each argument in turn.
A. Improper Jury Instructions
Hunter's first argument is that his attorneys failed to object to an improper jury instruction regarding liability under § 924(c).
To the extent we can understand his argument,
he seems to believe that this court erroneously instructed the jury that he could be found liable for the offense of using or carrying a firearm during the commission of a crime of violence (§ 924(c)) if one of his co-conspirators committed such an offense in furtherance of the conspiracy, or if he aided or abetted another person in the commission of such an offense. See Pet.'s Br. at 5. Nowhere in his brief does Hunter dispute, as a factual matter, that he was an active participant in the bank-robbing conspiracy and that his co-conspirators violated § 924(c) by using and carrying firearms during the bank robberies.
Rather, his argument seems to be a strictly legal one--he denies that he can be charged with violating § 924(c) as either a co-conspirator or as an aider and abettor.
It is clear that the challenged jury instruction was proper. The Seventh Circuit has expressly held that conspirators can be held liable for violations of § 924(c) by their co-conspirators. See United States v. Gironda, 758 F.2d 1201, 1211-12 (7th Cir. 1985). In Gironda, one conspirator had violated § 924(c) by carrying a firearm during a conspiracy to steal money from a bank. The court considered the doctrine articulated in Pinkerton v. United States, 328 U.S. 640, 90 L. Ed. 1489, 66 S. Ct. 1180 (1946), and interpreted it "to mean that each conspirator may be 'liable for overt acts of every other conspirator done in furtherance of the conspiracy.'" Gironda, 758 F.2d at 1211 (quoting United States v. Read, 658 F.2d 1225, 1230 (7th Cir. 1981), and collecting cases). Under this theory, the court held the co-conspirators liable under § 924(c) even though they had not personally used or carried firearms during the offense. Since Gironda, the Seventh Circuit has continued to impose liability on co-conspirators for their colleagues' violations of § 924(c). See, e.g., United States v. Monroe, 73. F.3d 129, 132 (7th Cir. 1995); United States v. Sandoval-Curiel, 50 F.3d 1389, 1394-95 (7th Cir. 1995); United States v. Gutierrez, 978 F.2d 1463, 1467-68 (7th Cir. 1992).
It is likewise clear that a person can be held liable for aiding and abetting a violation of § 924(c). "Aiding and abetting liability under 18 U.S.C. § 2 has been routinely applied in conjunction with 18 U.S.C. § 924(c) to convict individuals of 'aiding and abetting in using or carrying a firearm.'" United States v. Golden, 102 F.3d 936, 945 (7th Cir. 1996) (quoting United States v. Price, 76 F.3d 526, 529 (3d Cir. 1996)). Hence, there was nothing improper in this court's jury instruction indicating that the jury could find Hunter liable under § 924(c) under either conspiracy or aiding and abetting theories. Hunter's trial and appellate attorneys thus committed no error in failing to object to this instruction.
B. Unreliable Witness Identification and Testimony
Hunter's second argument is that his attorneys were ineffective for failing to prevent the introduction into evidence of "eyewitness photospread identifications which were unreliable," as well as the subsequent unreliable in-court testimony of those eyewitnesses. See Pet.'s Br. at 28. It is well established that when a pretrial identification procedure is "unnecessarily suggestive and conducive to irreparable mistaken identification," the procedure may deprive a defendant of due process. Stovall v. Denno, 388 U.S. 293, 301-02, 18 L. Ed. 2d 1199, 87 S. Ct. 1967 (1967). Moreover, a subsequent in-court identification of the defendant by a witness who participated in an unduly suggestive identification procedure is inadmissible if there is a "very substantial likelihood of irreparable misidentification." Neil v. Biggers, 409 U.S. 188, 198, 34 L. Ed. 2d 401, 93 S. Ct. 375 (1972). In making this second inquiry, "reliability is the linchpin in determining the admissibility of identification testimony," Manson v. Brathwaite, 432 U.S. 98, 114, 53 L. Ed. 2d 140, 97 S. Ct. 2243 (1977), and the Court has set forth a five factor test for lower courts to apply in assessing reliability, see id. But it is important to remember that suggestiveness and reliability are two distinct inquiries, and "if a defendant fails to show that a photo display was unnecessarily suggestive . . . we need not consider whether the identification was otherwise reliable." United States v. Sleet, 54 F.3d 303, 309 (7th Cir. 1995); see also United States v. Donaldson, 978 F.2d 381, 387 (7th Cir. 1992); United States v. Johnson, 859 F.2d 1289, 1294 (7th Cir. 1988).
In this case, Hunter has failed to make the necessary showing of a suggestive photo array. His only real argument as to how the array was suggestive is that five of the witnesses who identified him--Jennifer and Barbara Taglienti, Kevin Grond, Aaron Wetzel, and Steven Smith--may have seen his picture on television prior to selecting his picture from the government's photo arrays. See Pet.'s Br. at 44, 46, 47, 62.
The Seventh Circuit considered and rejected a similar argument in Johnson, supra. In Johnson, the photo used in the photo array from which witnesses identified the defendant had been "widely circulated" and shown on television in the community where the witnesses lived. See id. at 1292-93. Johnson argued that it was unconstitutional "for the police to use in an identification procedure a photograph that they themselves had earlier distributed publicly." Id. at 1296. The court disagreed, and stated that "merely to create a risk that a witness may see a publicly distributed photo does not automatically create a substantial likelihood of subsequent irreparable misidentification." Id. Since the public airing of the photograph was not impermissibly suggestive, the court found that the question of the reliability of the identifications was one for the jury to resolve. Id. This case is similar:
Hunter cannot establish suggestiveness simply by claiming that photographs of him were publically aired on television or in the print media at some time prior to the witnesses' identifications of him. The reliability of the witnesses' identifications was a matter appropriately left to the jury.
C. Limitation on Cross-Examination
Hunter's third argument is that his appellate counsel was ineffective for failing to appeal this court's limitation on defense counsel's cross-examination of eyewitnesses Jennifer Taglienti and Aaron Wetzel. He believes that the limitation deprived him of his Sixth Amendment right to confront witnesses and was erroneous under the Federal Rules of Evidence. See Pet.'s Br. at 65. In particular, Hunter objects to three instances where defense counsel was prevented from questioning Taglienti and Wetzel regarding prior statements that were allegedly inconsistent with their in-court testimony. See id. at 65-66. Hunter's arguments are without merit.
The Confrontation Clause establishes the right of an accused not only to physically confront a witness against him, but to have an opportunity to cross-examine. See Delaware v. Van Arsdall, 475 U.S. 673, 678, 89 L. Ed. 2d 674, 106 S. Ct. 1431 (1986). The Confrontation Clause, however, "guarantees only an opportunity for a thorough and effective cross-examination, 'not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.'" United States v. Sasson, 62 F.3d 874, 882 (7th Cir. 1995), cert. denied, 516 U.S. 1131, 133 L. Ed. 2d 876, 116 S. Ct. 953 (1996) (quoting Delaware v. Fensterer, 474 U.S. 15, 20, 88 L. Ed. 2d 15, 106 S. Ct. 292 (1985) (per curiam)). As long as the defendant's right to effective cross-examination is preserved, "the district court retains wide latitude to impose reasonable limits on the scope and extent of cross-examination 'based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety or interrogation that is repetitive or only marginally relevant.'" Id. (quoting Van Arsdall, 475 U.S. at 679).
Although the Supreme Court has never comprehensively enumerated the ways in which a defendant might establish a violation of the Confrontation Clause, the Court has generally viewed the ability of the defendant to expose a witness' biases as the core interest protected by the clause:
We think that a criminal defendant states a violation of the Confrontation Clause by showing that he was prohibited from engaging in an otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness, and thereby 'to expose to the jury the facts from which jurors . . . could appropriately draw inferences relating to the reliability of the witness.'
Van Arsdall, 475 U.S. at 680 (quoting Davis v. Alaska, 415 U.S. 308, 315, 39 L. Ed. 2d 347, 94 S. Ct. 1105 (1974)); see also Yancey v. Gilmore, 113 F.3d 104, 108 (7th Cir. 1997) (limitations on a party's ability to challenge the credibility of a witness in ways other than showing bias do not implicate the Confrontation Clause); Sasson, 62 F.3d at 882 (describing the opportunity to expose witness bias as the "core function" of the Confrontation Clause). The Supreme Court has defined bias as "the relationship between a party and a witness that might lead a witness to slant, unconsciously or otherwise, his testimony in favor of or against a party. Bias may be induced by a witness' like, dislike, or fear of a party, or by the witness' self-interest." United States v. Abel, 469 U.S. 45, 52, 83 L. Ed. 2d 450, 105 S. Ct. 465 (1984); see also Sasson, 62 F.3d at 883 n.6.
In this case, Hunter does not suggest that this court's limitations on his cross-examination of government witnesses prevented him from exposing their biases or their motives in testifying. Instead, he merely objects to three instances where defense counsel was limited--on hearsay grounds--in questioning witnesses about details of their in-court testimony that varied from or were inconsistent with their sworn prior statements. See Pet.'s Br. at 66-67. This does not amount to a violation of the Confrontation Clause.
Moreover, even if Hunter could establish that we committed either constitutional or statutory error in limiting the cross-examination of Taglienti and Wetzel in these three instances, such error was harmless. Harmless error analysis in this setting requires us to consider the "error" in relation to "the importance of the witness' testimony to the prosecution's case, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, and the overall strength of the prosecution's case." Sasson, 62 F.3d at 885 (citing Van Arsdall). The testimony of Taglienti and Wetzel was corroborated by other witnesses: Taglienti was not the only witness identifying Hunter as the perpetrator of the M & I Bank robbery, see Tr. at 601, nor was Wetzel the only witness regarding the Valley Bank robbery, see Tr. at 739-40. The testimony of all of these witnesses was consistent with the government's abundant evidence of Hunter's involvement in the conspiracy--involvement which Hunter now admits, see Pet.'s Br. at 23-24--such as notebooks with his handwriting, guns with his fingerprints, maps in his possession detailing the locations of victim banks and potential getaway routes, and clothing that he was wearing at the time of his arrest that matched the clothing worn by the robber. Cf. Tr. at 159-76 (government's opening statement, summarizing the evidence it planned to present). And as discussed earlier, Hunter's convictions under § 924(c) are equally valid whether he was the actual bank robber or merely a conspirator.
Thus, appellate counsel's failure to object to this court's limitations on cross-examination, if error at all, was harmless.
D. Double Jeopardy
Hunter's penultimate argument is that his attorneys were ineffective for failing to argue that § 924(c), which punishes using or carrying a firearm during the commission of a crime of violence, violates the Double Jeopardy Clause if applied to persons convicted of bank robbery under 18 U.S.C. §§ 2113(a), (d).
The Seventh Circuit has squarely rejected this precise argument:
We proceed to the question of whether punishment for a violation of both §§ 924(c) and 2113(d) is prohibited by the Double Jeopardy Clause of the Constitution. Recent Supreme Court precedent is dispositive of this question.