Appeal from the United States District Court for the Northern District of Indiana, Fort Wayne Division. No. 1:05-CR-57-TS-Theresa L. Springmann, Judge.
The opinion of the court was delivered by: Wood, Circuit Judge
Before EASTERBROOK, Chief Judge, and BAUER and WOOD, Circuit Judges.
This case illustrates the importance of the standard of review that an appellate court applies to asserted trial error. When an appellant wants to complain about an error for the first time on appeal, we ordinarily require the complaining party to demonstrate plain error. See FED. R. CRIM. P. 52(b). If the challenged ruling is one that we would have reviewed only for abuse of discretion if a proper complaint had been made in the district court, the appellant's job is especially difficult. That, in a nutshell, is the burden that appellant James LeShore has shouldered here. Finding no reversible error, we affirm his conviction and sentence for bank robbery.
We draw our account of the facts from the district court's opinion, supplementing it with other information as needed. On the morning of September 13, 2005, at about 9:30 a.m., the First Source Bank in Fort Wayne, Indiana, was robbed by two African-American males wearing white cloth masks. One of them brandished a gun. With a bag full of money ($5,600, along with some bait money and a dye pack), the robbers jumped into a blue van and drove away. The van was later found abandoned in a cemetery near a wooded area; its plates were registered to Jeannie Colon and its steering column had been punched. An eyewitness on the other side of the woods saw two African-American men run from the woods into a burgundy truck and drive away. Along the path from the van through the woods to where the eyewitness saw the men jump into the truck, police found a sleeve from a white t-shirt; the rest of the t-shirt was not found.
LeShore does not challenge any of the facts we have recounted thus far. At this point, however, his story diverges from that of the police officers who eventually arrested and questioned him. Officer Fritz Rommel testified that he picked up LeShore in front of a house belonging to Lindsey Green, took LeShore to the police station, and then escorted him into the interview room. Rommel has no particular expertise in recognizing the effects of drugs, but he does have some training in recognizing the effects of alcohol. He stated that LeShore did not stumble, slur his speech, disobey commands, or act strangely. Rommel did not smell alcohol on LeShore's breath. After a 40-minute wait, Special Agent Restituto Loran interviewed LeShore; the interview was recorded on a DVD. Loran did have training in recognizing and dealing with persons under the influence of both alcohol and drugs. Loran testified that he did not notice any signs of intoxication, although he did smell pepper spray (which is common after a dye-pack explosion). Loran gave LeShore a form explaining his Miranda rights, and then LeShore read them aloud and signed the form. Loran then questioned LeShore, who recounted that he left his fiancée's house at 10:00 a.m. and found a bag of money already on the back porch of Green's house. LeShore said that he never smoked any crack and was not impaired in any way. After listening to LeShore, Loran and several other officers confronted LeShore with incriminating evidence including statements from Green, surveillance photos from the bank, evidence connecting him to his fiancée's van, and the dye pack. Throughout the interview, LeShore remained attentive and answered questions appropriately.
Before trial, LeShore moved to suppress the statements he made during his interrogation and the associated DVD, alleging that his Miranda waiver was invalid because he was heavily intoxicated at the time. At the suppression hearing, LeShore tried to provide a basis for that motion, expanding on (and changing slightly) his previous narration. He testified that he woke up and left the house of his fiancée, Jeannie Colon, before 8:00 a.m. that morning and headed for a drug house, stealing a bike along the way. He estimated that this trip took him an hour-and-a-half to two hours. At the drug house, he smoked about 2.5 grams of crack and drank four or five beers. He then proceeded to Lindsey Green's house, where he smoked another 1.5 grams of crack, drank several shots of vodka, and cracked open a beer. He claims that he saw a pile of money on the table in Green's house and started to pocket some of it. Green spotted him doing this and kicked him out. He began walking back to the drug house, saw a police car, turned around, and left the money on the back porch of Green's house in a bag. (The last of these details was corroborated by an eyewitness; police discovered some of the bait money from the bank in the bag.) He was arrested in front of Green's house around noon.
The district court found that LeShore's testimony at the suppression hearing was not credible and that he was not impaired when he gave his Miranda consent. The court therefore denied his motion to suppress the DVD of the questioning and various inculpatory statements he had made. At trial, LeShore was found guilty and convicted of bank robbery with a dangerous weapon, 18 U.S.C. § 2113(a) & (d), and brandishing a firearm during a crime of violence, 18 U.S.C. § 924(c). He was sentenced to a total of 14 years' imprisonment.
On appeal, LeShore challenges the admission of the DVD of the interrogation and a list of bait money used at the bank; he also asserts that even if the individual errors are insufficient to warrant a new trial, there is cumulative error that does.
LeShore attacks the admission of the DVD of his interrogation on two grounds: first, that the DVD was unfairly prejudicial and insufficiently probative, warranting exclusion under FED. R. EVID. 403, and second, that he was intoxicated during the interview, which vitiated his Miranda consent and rendered the statements he made during questioning inadmissible.
Rule 403 allows the district court to exclude relevant evidence "if its probative value is substantially outweighed by the danger of unfair prejudice . . . ." Ordinarily, we review a district court's evidentiary ruling only for abuse of discretion; when it comes to the necessarily context-sensitive evaluation of a claim under Rule 403, "we give special deference" to the district court's findings and reverse only when "no reasonable ...