Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 05 CR 48-Matthew F. Kennelly, Judge.
The opinion of the court was delivered by: Williams, Circuit Judge.
Before KANNE, EVANS, and WILLIAMS, Circuit Judges.
These three defendants were convicted of robbing an armored car outside a Chicago bank. They shot a guard three times at point-blank range (thankfully, he survived) and made off with $400,000 in cash. One of them, Willie Watson, pleaded guilty to aiding and abetting Hobbs Act robbery, 18 U.S.C. §§ 1951, 1952; the other two, brothers Anthony and Tracy Redmond, went to trial and were found guilty of Hobbs Act robbery, conspiracy to commit the same, and using a firearm during and in relation to the robbery, id. § 924(c). On appeal Tracy Redmond argues that evidence was improperly admitted in violation of Federal Rule of Evidence 804(d)(3) and the Confrontation Clause of the Sixth Amendment, and Anthony Redmond argues that the indictment listed an impermissible theory of federal jurisdiction, tainting the jury's verdict. The district court did not abuse its discretion in admitting the evidence, and even if it did, any error is harmless; and the chances of the indictment influencing the jury are negligible. We therefore affirm the judgment of the district court.
According to the government's evidence at trial, Tracy Redmond actually committed the robbery and shot the guard, while Watson was the driver and Anthony rode along. After the robbery, the three drove away in their stolen van and switched to a different car to avoid detection; Anthony drove that car. But they weren't as smooth in their post-robbery execution as they were in their pre-robbery planning. Anthony left a cigarette butt in the van as well as a soda can containing his saliva. Police later used these to link him to the robbery. Moreover, in the days following the heist, the defendants splurged. Tracy bought himself two cars and made $9000 in improvements to them, and Anthony bought a car of his own.
A fourth person-an insider-facilitated the robbery, and her apprehension by police officers led to the gang's downfall.Estella Suttle, who is not a party to this appeal, was a teller at the bank that had hired the armored car. Among other things, she told the defendants about the bank's security camera system. But after the robbery, she boasted to the wrong guy-an FBI informant. Suttle was arrested and agreed to cooperate with the authorities; she ultimately pled guilty herself. Officers concocted a ruse, directing Suttle to call Anthony (whom she was dating) and tell him, falsely, that she had seen a news report that "they identified the shooter." Anthony did not express surprise or ask which crime she was referring to, and after their brief call he called Tracy. That call was not recorded. Later that night, Anthony visited Suttle and, as the FBI recorders rolled, the two had a wide-ranging conversation. Anthony said that he had spoken to Tracy, and that the two believed the news report to be a plant by the bank in order to fluster the culprits. Anthony said that Tracy's face had been too well concealed for an identification: "I think it was just kinda a bit impossible for them to, like identify him . . . because . . . the whole face was covered . . . his hair was up in his hat, he had his hat up over his face." Anthony then made a statement that was eventually used as evidence of Tracy's involvement:
I don't know what's going on but I mean, you know like when I told Dough [Tracy] he was like no they can't identify me. Period. You know, so I don't know. You know but I told him, I said look, I don't know, I'm telling you what she told me, so be careful, be alert, watch your back, you know all that, you know cause you just never know . . . . I mean, a bank robber, come on man . . . . They identify you? They're gonna come get you, period.
At trial, both Suttle and Watson testified for the government. The Redmond brothers were found guilty and sentenced to 256 months' imprisonment (Tracy) and 190 months' imprisonment (Anthony). Watson and the Redmonds then appealed.
We address Tracy Redmond's arguments first, and then turn to those raised by the other defendants.
The principal argument on appeal is Tracy Redmond's challenge to the admission of Anthony Redmond's statement discussed above. When Anthony went to visit co-schemer Suttle in response to her (false) assertion that she had seen a news report in which police boasted they had identified the gunman, Anthony said some things that were ultimately used to tie Tracy to the robbery. Anthony told Suttle that Tracy said that he (Tracy) could not possibly have been identified because he had worn a mask during the robbery. Tracy challenges the admission of this evidence under both Federal Rule of Evidence 804(b)(3) and the Confrontation Clause. We review the former argument for an ...