Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 97 CR 697--Milton I. Shadur, Judge.
Before Easterbrook, Diane P. Wood, and Evans, Circuit Judges.
The opinion of the court was delivered by: Evans, Circuit Judge
It's not a good idea to rob banks. It's particularly not a good idea to rob banks when you have distinctive physical characteristics--like being bigger than the average offensive tackle in the National Football League. Not to mention wearing your hair in a ponytail.
Andrew Traeger, whose nickname, appropriately enough, is "Mountain," carries 350 pounds on his 6'5" frame. On an October afternoon in 1997, Traeger robbed the LaSalle Bank on Chicago's Ashland Avenue. A LaSalle teller gave police a description of the robber. One week later, Traeger tried to rob the Great Bank on Chicago's Western Avenue. A report of that attempt, with a description similar to the description of the LaSalle robber, went to the police. Less than 20 minutes later, alert police officers saw Traeger, who fit the description they had, walk past a bank (the North Community Bank) in a strip mall on Western Avenue. He was arrested a few moments later. Subsequently, a two-count indictment was returned charging Traeger with the robbery and the attempt. After the jury heard a compelling case against him--including eyewitness identifications from bank tellers--Traeger was convicted on both counts. Today we resolve his appeal from those convictions.
A startling aspect of this case is that Traeger was not sentenced until more than 2 years after he was convicted. In the interim, he discharged his trial lawyer and went through two more lawyers in a failed effort to establish that his trial lawyer rendered ineffective assistance. When Traeger was finally sentenced, he represented himself, and that is one of the grounds he urges on this appeal--a claim that he was denied his Sixth Amendment right to counsel at sentencing.
Before getting to the issues on this appeal, we want to note that the condition of the transcript in this case is as bad as any to reach this court in recent memory. Its deplorable state prompted the government to insert this heads-up in a footnote at the beginning of its brief:
The record on appeal consists of one volume of pleadings and orders, cited as "R." followed by a document number, and, where appropriate, a page or paragraph number within the document; and, as supplemented, 17 volumes of transcripts. The transcript of the trial is five volumes, but each is separately paginated, and the proceedings are not transcribed in order--for instance, one volume transcribes the parties' opening statements on March 23, 1999, followed by the testimony of a single government witness, followed by the closing arguments given on March 25, 1999. The trial transcripts are also erroneously dated March 1998. The trial was in March 1999. However, each volume has a number handwritten on the lower right corner of the cover page. Citations to the trial transcript are to that number, e.g., "132-1," followed by "Tr." and a page number within that volume. Part of the trial was not transcribed. The transcripts of the first day of testimony conclude with the district court announcing a brief afternoon recess, with testimony to resume at 3:25 p.m., and the government informing the district court that it had two more witnesses to call. 133-1Tr. 98-99. The government informed the court reporter regarding this problem, and twice the court reporter has prepared transcripts of what he believed was the testimony following the afternoon break on March 23, 1999. Both are in error. The first, number 136-1, is a duplicate of Agent Joseph Stiller's testimony at a pre-trial suppression hearing, 132-2Tr. The second, numbered 137-1, is a duplicate of Agent Stiller's testimony at trial on March 25, 1999, as a defense witness. 133-3Tr.3-18. The government has asked the court reporter to continue looking for his notes for March 23, 1999, following the afternoon break. The other transcripts are of the pre-trial suppression hearing and the post-trial proceedings. They are also cited by the number on the lower right corner of the cover page, followed by "Tr." and a page number. "DA" refers to the appendix to defendant's brief. The government's appendix is cited as "GA." The first citation to materials contained in an appendix is to both the record and the appendix, and thereafter to the appendix only.
And that's not all. Headings in the transcripts--indicating what witness's testimony is reported on a page--arehopelessly screwed up. For instance, we found the testimony of one of the arresting officers (LoPresti) recorded under the heading "Amin--recross" and the testimony of Pauline Anderson recorded under the heading "Goodman--redirect." If there were awards for sloppiness, the court reporter (who, out of charity, we will not name) here would win first prize.
Now on to Traeger's appeal. One of the government's witnesses (Anderson) was a prostitute who spent a week with Traeger in a hotel (the Spa Motel)*fn1 after the LaSalle robbery and before the attempt to stick up the Great Bank. Traeger paid for all lodging, food, beverages, and services performed by Anderson with a roll of bills he kept under a mattress or in a sock. Anderson told the jury that at the end of the week, while she was with Traeger in a "lounge" having a beer, he asked her to go into the Great Bank and see "how far the tellers were from the front door." She said he told her he wanted this information because he "needed a good bank to invest in." She went. She returned shortly and gave Traeger the requested information.
Anderson and Traeger then left the lounge, hailed a cab, and took it less than a block to the front door of the Great Bank. Traeger got out, told the cab driver to wait, and entered the bank. Traeger returned in a few minutes, saying it "wasn't a good bank to invest in." The cab then proceeded to the bank in the strip mall on Western Avenue. Traeger got out, returned, and before the cab could leave, it was surrounded by police officers.
So, what happened inside the Great Bank while Anderson and the cab driver waited outside? Well, according to Jade Lee, the bank's branch manager, Traeger (whom she identified soon after he was arrested and returned to the bank for a viewing by tellers) approached her at a teller window, announced a robbery, and said if she gave him all the money she would not be hurt. In a state of disbelief, Lee replied, "I'm sorry?" Traeger then repeated his demand for money, adding that he had a gun and that Lee should not press the alarm. Now panicking, Lee said, "I really can't," and backed away from the counter. When Traeger started to reach under his sweatshirt, telling Lee to "come here," Lee said to the teller at the adjacent window, "Sun Gang, get down," and then Lee dropped to the floor. At that point, Traeger left the bank empty-handed. The offered defense to the attempted robbery charge (in Traeger's lawyer's closing argument--Traeger himself wisely elected not to testify) was that there was no intent to rob; it was just a misunderstanding on Lee's part because her English was a little weak.
The first robbery, of the LaSalle Bank, was more conventional. According to a teller, Lorena Barajas, Traeger (whom she identified in an FBI lineup 2 weeks after his arrest) announced a robbery, told her he had a gun, and said she should stay calm, not press the alarm, and give him the $20s, $50s, and $100s from her drawer. She complied and Traeger left the bank $5,840 richer. The defense to this robbery was misidentification.
There was other evidence pointing to Traeger's guilt (like an incriminating utterance to a police officer regarding the LaSalle Bank robbery), but we think we can safely stop now and consider the arguments Traeger ...