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United States v. Hill

December 31, 2008

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
EDDIE HILL, DEFENDANT-APPELLANT.



Appeal 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: Tinder, Circuit Judge

ARGUED SEPTEMBER 8, 2008

Before POSNER, KANNE, and TINDER, Circuit Judges.

Eddie Hill was indicted for two Chicago-area bank robberies, one occurring in 2002 and the other in 2004. The four-count indictment also included two corresponding counts of possessing a firearm during the commission of a crime of violence related to each of the robberies. A jury found Hill guilty of the charges associated with the 2004 robbery but was unable to reach a verdict on the 2002 robbery and the related firearm count. The district judge accepted the verdicts on the 2004 counts and declared a mistrial on the other two counts. Rather than proceeding with an immediate retrial of the 2002 charges, the court held a sentencing hearing on the 2004 counts, which resulted in a sentence of imprisonment of 360 months for Hill. Hill argues in this appeal that his convictions should be reversed on two grounds-the jury selection process and the admission of evidence documenting his purchase of an S-Type Jaguar shortly after the 2002 robbery.

I. Background*fn1

Eddie Hill, his brother Michael, Cornelius Price, and Cleve Jackson planned to rob a bank in the fall of 2002, or at least Jackson so testified as a witness for the government during trial. According to Jackson, this group drove to the First Security Federal Savings Bank in Chicago the morning of October 2, 2002. Jackson's role was to be the lookout, Michael was the getaway driver, and Price and Hill performed the robbery. Jackson watched as Price and Hill accosted a bank employee who was unlocking the outer door of the bank. The bank employee testified that two men rushed up to him while he was opening the door and pressed a gun against his back. They forced him to turn off the alarm and put cash from the vault into a laundry bag. The men escaped from the bank through a back door with approximately $151,000.

In December 2004, Hill and Jackson planned to rob another bank, this time with two other cohorts, Vincent Hamilton and Lavonas Troupe. During this venture, Hill was stationed as the lookout, Jackson and Troupe performed the robbery, and Hamilton was the getaway driver. Jackson and Troupe approached two bank employees as they were entering the North Community Bank in Chicago. Jackson pointed a gun at the employees and forced them to give the men access to the vault and turn off the alarm. Jackson held a gun to the head of an employee as she opened a safe within the vault. Jackson and Troupe escaped into the getaway van through an alley behind the bank with approximately $119,000. This time, however, the robbers were not so lucky, as two witnesses observed Jackson and Troupe pushing the employees into the bank. They called the police, who arrived on the scene just as Hamilton was driving away. The witnesses, who were waiting across the street at a gas station, pointed the police in the direction of the getaway van and pursuit was quickly underway. The police chase ended, as they often do, when the getaway van crashed into a pole. Jackson and Troupe attempted to flee on foot-and ran straight into an area enclosed by a fence. All three men were arrested. Later, Jackson's sister (who was also Troupe's girlfriend) recorded a conversation with Hill in which he described his involvement in the robbery as the lookout.

Hill, Michael, and Price were charged in connection with the 2002 robbery. Price was convicted of bank robbery and possessing a firearm during the commission of a crime of violence. Hill and Michael were tried together, and the jury was unable to reach a verdict as to the counts against either of them arising from this robbery. Michael later pled guilty to the lesser charge of bank larceny for this offense.

Hill, Jackson, Hamilton, and Troupe were charged in connection with the 2004 robbery. Jackson and Troupe pled guilty to the robbery and possessing a firearm during the commission of a crime of violence. Hamilton was tried separately from the Hill brothers, and like Eddie Hill, was convicted of the 2004 bank robbery and possessing a firearm during the commission of a crime of violence. This appeal involves only Eddie Hill.

II. Jury Selection

Hill argues that the district court violated the procedure used for peremptory strikes and selecting alternate jurors, which left him unable to properly cure bias that remained undiscovered because of an inadequate voir dire. Federal Rule of Criminal Procedure 24 sets out the process for exercising peremptory strikes and selecting alternate jurors. For a felony charge (i.e., a crime punishable by imprisonment for more than a year), the government has six peremptory challenges and the defense (either a defendant, if tried alone, or defendants, if tried jointly) has ten peremptory challenges. Fed. R. Crim. P. 24(b)(2). The court can impanel up to six alternate jurors, who must replace jurors in the same sequence in which the alternates were selected. Fed. R. Crim. P. 24(c)(1)-(2). When one or two alternate jurors are empaneled, one additional peremptory challenge is permitted (and more if additional alternate jurors are to be selected). Fed. R. Crim P. 24(c)(4).

In United States v. Mendoza, 510 F.3d 749, 753 (7th Cir. 2007), we noted that it was the usual practice of a particular district court judge to seat sixteen jurors to hear the evidence presented and then randomly select four individuals to be alternates after the presentation of evidence. Though we acknowledged there were some benefits to proceeding in that manner, we held that deviation from Rule 24 was not within the sound discretion of the district court, and we asked the court to discontinue its practice. Id.; see also United States v. Delgado, 350 F.3d 520, 524 (6th Cir. 2003) ("Federal rules of procedure should not, of course, be disregarded by courts any more than by litigants."). We concluded that the error was not reversible because the defendant did not demonstrate that the error affected his substantial rights by showing, for example, that the jury was not impartial. Mendoza, 510 F.3d at 754.

The trial in this case tool place several months before the release of our opinion in Mendoza, so neither the trial judge nor counsel had the benefit of the Mendoza admonition. Consequently, the prosecutor and Hill's attor-ney agreed to a procedure for jury selection (which also varied from the strictures of Rule 24) and suggested it to the judge.

MR. POPE [Assistant U.S. Attorney]: I have spoken with defense counsel, and what we would propose to the Court is that . . . the government be allotted 8 peremptory challenges, the defense be allotted 13 peremptory challenges. That is for both the actual jury and then the alternate jurors, all of which [are] to be used at once not reserving the one and one as suggested by the rules. And I also would suggest that we just have ...


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