The opinion of the court was delivered by: ELAINE E. BUCKLO, District Judge
MEMORANDUM OPINION AND ORDER
Defendant Terrance McCarter was indicted on August 27, 2003, on two
counts related to an attempted robbery on September 1, 1998. Mr. McCarter
was arrested on September 8, 2003. After a jury trial, Mr. McCarter was
convicted on both counts on December 18, 2003. Mr. McCarter now moves for
a judgment of acquittal or, in the alternative, for a new trial. I deny
Mr. McCarter presents sixteen arguments in support of his motion. The
first two allege that the government did not meet its burden of proving
beyond a reasonable doubt that Mr. McCarter committed the crimes he was
charged with. Mr. McCarter makes no attempt to explain how the
government's proof was insufficient and the government's proof was, in
Mr. McCarter next argues that the court erred in denying his motion to
dismiss his indictment based on pre-accusatory delay. In order to show
that the delay in indictment was unconstitutional, Mr. McCarter must
first show that he was actually and substantially
prejudiced by the delay. United States v. McMutuary,
217 F.3d 477, 481-82 (7th Cir. 2000). To meet this exacting burden, Mr.
McCarter must present specific and concrete allegations, supported by
evidence, of the prejudicial effect. Id. at 482. Mr. McCarter
alleges only that records from his employer at the time of the alleged
crime are no longer available, that a material witness has since died,
and that the photo line-ups and AFIS results from 1998 are not available.
Mr. McCarter does not state how either his employment records, the
testimony of this witness, or the photo line-ups and AFIS results would
support his defense. He cannot show actual prejudice solely by listing
sources of potential evidence that are no longer available, without
clearly demonstrating the harm that will result to his defense efforts.
United States v. Canoy, 38 F.3d 893, 902 (7th Cir. 1994)
Mr. McCarter's fourth argument is that the court erred by denying his
motion to dismiss the indictment for failure to allege an essential
element of the offense. Specifically, he argues that the indictment did
not allege a "substantial step." To be sufficient, an indictment must (1)
contain the elements of the offense charged and apprise the defendant of
the charges he faces and (2) be sufficiently specific so as to protect
the defendant from further prosecution for the same acts. Russell v.
United States, 369 U.S. 749, 763-64 (1962). The indictment does
that Mr. McCarter attempted to commit the underlying crimes. The
indictment need not break down "attempt" into a definition including
taking a "substantial step." The indictment stated the elements of the
crime as laid out in the statute and adequately informed Mr. McCarter of
the acts he was charged with.
Mr. McCarter's fifth argument is that the court erred by denying,
without a hearing, his motion to suppress his statement. Before he is
entitled to a suppression hearing, Mr. McCarter must present "definite,
specific, detailed, and nonconjectural" facts that are both material and
definite. United States v. Rodriguez, 69 F.3d 136, 141 (7th Cir.
1995). Mr. McCarter presented no such facts in this case. He alleged that
an FBI agent threatened to beat him before he gave his statement, and
that he asked for but was not granted an attorney. Mr. McCarter presented
nothing beyond his bare allegations of these matters, failing to supply a
supporting affidavit. See United States v. Rollins,
862 F.2d 1282, 1290-91 (7th Cir. 1989).
Mr. McCarter next argues that the government was improperly permitted
to introduce an incomplete version of his statement to FBI Agent Sean
Burke. He argues that he should have been permitted to introduce the
exculpatory portions of that statement. However, Mr. McCarter could only
introduce those portions of his statement if they (1) were relevant to
issues in the case and (2) qualified or explained the portions introduced
by the government. United
States v. Haddad, 10 F.3d 1252, 1258-59 (7th Cir. 1993).
The government introduced portions of Mr. McCarter's statement
concerning his work history. Specifically, Agent Burke had asked if Mr.
McCarter had ever worked in a car detailing business or car wash, and
asked Mr. McCarter to list his employment history from 2003 back to the
mid-1990s. Mr. McCarter wanted to also introduce exculpatory portions of
his statement, denying any involvement with the September 1998 robbery
attempt. The exculpatory portions of Mr. McCarter's statement neither
qualify or explain the portions concerning his work history. Further,
exculpatory statements are not more credible just because they are made
contemporaneously with self-inculpatory statements. Williamson v.
United States, 512 U.S. 594, 599-600 (1994). The statements were
Mr. McCarter's seventh argument is that the government improperly
withheld information about an FBI agent's threat to beat the defendant.
Mr. McCarter alleges that immediately before he gave his statement to
police, Agent Burke threatened to beat him. He argues that the failure of
the government to tell him about this alleged threat, which was made
directly to Mr. McCarter, was suppression of evidence that violated his
rights under Brady v. Maryland, 373 U.S. 83 (1963). Evidence is
considered suppressed if "(1) the prosecution failed to disclose the
evidence before it was too late for the defendant to make use of the
evidence, and (2) the evidence was not otherwise available to the
defendant through the
exercise of reasonable diligence." United States v.
O'Hara, 301 F.3d 563, 569 (7th Cir. 2002). The evidence indicated by
Mr. McCarter fails this test, as evidence of any threats made to him was
equally within his possession as that of the government.
Mr. McCarter's eighth argument is that the court erred in denying his
proposed jury instruction on his theory of defense. A defendant is
entitled to a jury instruction on his theory of defense when "(1) the
proffered instruction is a correct statement of the law; (2) the
defendant's theory is supported by the evidence; (3) the asserted defense
theory is not already part of the charge; and (4) the failure to include
the instruction on the defendant's theory would deny him a fair trial."
United States v. Payne, 226 F.3d 792, 794 (7th Cir. 2000). Mr.
McCarter requested a jury instruction about his theory of defense that
read as follows: "If the only identification evidence is the defendant's
fingerprint on the victim's car, the prosecution must prove beyond a
reasonable doubt that the fingerprint was placed there during the
commission of the offense." This proposed instruction fails the third
prong of the test. A jury instruction concerning the charge of attempted
robbery was given. In that charge, the jury was instructed repeatedly
that the government had to prove that Mr. McCarter, the defendant,
committed the acts alleged. The jury was also specifically instructed
that the government's proof had to be
beyond a reasonable doubt. Mr. McCarter's proposed instruction
would have been duplicative of the charge.
Mr. McCarter's ninth argument is that the court erred in denying his
request for a jury instruction on eyewitness testimony. Where eyewitness
testimony is a central issue, the court must give a jury instruction
concerning the reliability of such identification. United States v.
Anderson, 739 F.2d 1254, 1258 (7th Cir. 1984). However, eyewitness
identification was an issue in this case, as the two witnesses to the
crime specifically testified that they could not identify Mr. McCarter
from their observations on September 1, 1998.
Mr. McCarter's tenth argument is that the court improperly denied his
Rule 29 motion for judgment of acquittal. He argues that no effect on
interstate commerce was shown. In order to bring a robbery within its
prosecutorial reach, the government need only show an "actual, if de
minimis, effect, or, where there is no actual effect, a realistic
probability of an effect, on interstate commerce." United States v.
Peterson, 236 F.3d 848, 851-52 (7th Cir. 2001). If Mr. McCarter had
successfully completed his crime, he would necessarily have affected
interstate commerce by forcing his victim to withdraw funds using an ATM.
The connection to interstate commerce is not severed because Mr. McCarter
was unable to complete his crime.
Mr. McCarter's eleventh argument is that the court improperly answered
the jury's note regarding interstate commerce. Courts may give
supplemental instructions to the jury. Mr. McCarter does not argue that
the answer was an incorrect statement of law, nor does he argue that his
counsel was not permitted to be heard before the court answered. This
Mr. McCarter's twelfth argument is that the government improperly
referred to the defense's failure to call a fingerprint witness,
violating his Fifth Amendment rights. However, the prosecution may
properly refer to Mr. McCarter's failure to call witnesses, other than
himself. United States v. Sblendorio, 830 F.2d 1382, 1391 (7th
Cir. 1987). The government may also imply that the defense's failure to
call witnesses (other than the defendant) to offer evidence in opposition
to that offered by government witnesses suggests that the government
witnesses are reliable. Id. at 1392.
Mr. McCarter's thirteenth and fourteenth arguments are that the
government improperly commented on defense counsel's integrity and argued
facts not in evidence in its rebuttal argument. The government argued
that if the evidence was two eyewitnesses and no fingerprint, defense
counsel would be arguing that the jury must acquit because there was no
fingerprint. This argument attacks defense counsel's arguments, not
defense counsel personally. See United States v. Xiong,
262 F.3d 672, 675 (7th Cir. 2001). The
government also argued that the fingerprints on the
victim's car window must have been left the day of the robbery,
because heat, light, and friction would have damaged or destroyed earlier
prints. This argument was based on testimony from the fingerprint expert
as to what would affect existing prints and on reasonable inferences
about the conditions the victim's car was exposed to at the end of a
Chicago summer. The government made this argument in response to ...