Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 04 CR 1074-David H. Coar, Judge.
The opinion of the court was delivered by: Evans, Circuit Judge.
Before MANION, ROVNER, and EVANS, Circuit Judges.
In this consolidated appeal, we review the convictions and sentences of two defendants, Cornelius Price and Vincent Hamilton, who, in separate jury trials, were found guilty of committing different Chicago bank robberies (18 U.S.C. § 2113(a)). Both were also convicted of carrying a firearm during their respective robberies (18 U.S.C. § 924(c)).
The district court judge (David H. Coar) sentenced Price to a term of 110 months for the October 2, 2002 robbery of First Security Federal Savings Bank, to be followed by a 300-month term on the firearm count. Hamilton received a sentence of 151 months for the December 9, 2004, robbery of the North Community Bank, to be followed by an 84-month term for carrying a firearm.
Price's appeal points to several alleged errors by the district court: (1) admitting, as modus operandi evidence, facts relating to a March 11, 2003, robbery of Bank Chicago (Price pled guilty to robbing this bank); (2) excluding part of a statement Price gave to an FBI agent following his arrest in connection with the March 2003 robbery; (3) admitting, as business records, evidence about car purchases by Price and others right after the October 2002 robbery; and (4) imposing a mandatory minimum sentence under § 924(c)(1)(C) where Price's previous conviction under that section was neither alleged in the indictment nor proven at trial.
Hamilton argues that the court: (1) failed to consider 18 U.S.C. § 3553(a) factors in sentencing him; (2) improperly enhanced his sentence by two levels for obstruction of justice under U.S.S.G. § 3C1.1; and (3) improperly admitted evidence of an out-of-court conversation between Hamilton and a coconspirator.
Although this appeal concerns two robberies, each with a separate defendant, the cast of characters in both incidents (and a third robbery) are intertwined. So we begin with the facts as they were developed at the two trials, viewing the evidence, as we must at this time, in the light most favorable to the government. Many of the facts come from cooperating coconspirators, notably Cleve "Hollywood" Jackson.
At 6:50 a.m. on Wednesday, October 2, 2002, Taras Serafym, the assistant branch manager at the First Security Federal Savings Bank on Western Avenue in Chicago, arrived for work. At a gas station across the street, Jackson waited in a car with a walkie-talkie, watching the bank from a distance.
As Serafym opened the bank's exterior door, he was confronted by two men-Cornelius Price and Eddie Hill-wearing gloves, black stocking masks, and sweatshirts with hoods pulled over their heads. Each carried a gun and a walkie-talkie. Price pointed his gun at Serafym's head and forced him to open the interior bank door. Once inside the bank, Price directed Serafym into the vault room, where Serafym disabled the alarm. The robbers instructed Serafym to open the safe and empty its contents into a white laundry bag. He did as directed. The robbers pushed Serafym toward the rear door and instructed him to lie down. Using a walkie-talkie, Price and Hill summoned their getaway driver, Eddie's brother Michael Hill.
The job complete, the four men (Price, Jackson, and the Hills) sought refuge in the home of Eddie and Michael's mother. They gathered in the basement to divide up the loot-the handsome sum of $151,379.
In the two days after the heist, with the cash apparently burning a hole in their pockets, all four men purchased rather pricey used cars. Eddie Hill bought a Jaguar, Michael Hill bought a Lincoln Navigator, Jackson bought a Lincoln Navigator in the name of his more credit-worthy uncle (John V. Brown), and Price bought a Ford Expedition.
Five months later, a new target-Bank Chicago on South Torrence Avenue-attracted the attention of Price, who, this time around, went solo. At about 7:30 a.m. on March 11, 2003, Price, wearing gloves and a ski mask, confronted the teller unlocking the door to the bank. Pointing his gun at the teller, Price assured her that he didn't want anyone to get hurt. He just wanted the money-and quickly.
Price pushed the teller into the bank. She disarmed the alarm and opened the safe. Price handed the teller a laundry bag, ordering her to fill it with money. The teller emptied two drawers' worth of cash into the bag. Price then ordered her to the floor and tied her hands behind her back with duct tape. He exited, bag in hand, through the front door.
The police caught Price after a brief foot chase, during which Price dropped his ski mask and the laundry bag. The officers arrested Price and, while patting him down, found a gun and car keys with an attached keyless entry remote. With the remote, using the kind of police work that would make McNulty and "The Bunk" of The Wire proud, the officers walked around, continually pressing the "unlock" button around cars parked in the vicinity of the bank. Eventually, the remote found its mate: a 1997 black Ford Expedition, the one purchased by Price a day after the October 2002 robbery. The police also recovered the take from the bank-$31,983.
Although Price eventually admitted that he owned the Ford Expedition and that he had committed the robbery, he maintained that ...