Appeal from the United States District Court for the Eastern District of Wisconsin. No. 07-CR-30-Lynn Adelman, Judge.
The opinion of the court was delivered by: Tinder, Circuit Judge.
Before FLAUM, WILLIAMS, and TINDER, Circuit Judges.
Alan Simmons was convicted on three federal charges: conspiracy, armed bank robbery, and use of a firearm during a crime of violence. He appeals the conviction and his sentence, and argues that improper conduct by government prosecutors should have led the district court to grant a mistrial. We disagree and affirm his conviction and sentence.
Alan Simmons was convicted of being the mastermind behind a Cedarburg, Wisconsin bank robbery. His friend Antonio Mann and cousin Mark Campbell actually robbed the bank, but Simmons was in phone contact with them throughout the heist. The scheme was hatched by Mann, whose girlfriend Jackie Schmidt worked at the bank. Schmidt had described the bank in detail, its security precautions (or lack thereof) and related that robbing the bank would be easy. Mann relayed the information to Simmons, who hooked him up with Campbell, but only after "interviewing" two other potential accomplices, neither of whom panned out for this bank job.
Simmons, Mann, and Campbell all took a first crack at the bank on December 29, 2004, when it was closed (actually, this was more of a burglary than a robbery), using a duplicate key that Mann had made from Schmidt's key ring. Mann and Campbell went to the bank while Simmons, continuously monitoring Mann and Campbell through cell phone calls, acted as a lookout from a nearby ice cream stand (bringing along a girlfriend who testified at trial to his presence at the stand during the time of this attempt and who was apparently unaware of what was taking place at the bank while she bought her daughter ice cream and Simmons waited in the car). But this plan was a disaster: first, Mann fell through some ice into a creek when he tried to sneak up to the bank, and then, the key didn't work. So, the wouldbe thieves retreated, Mann to get into some dry clothes and the three of them to devise a new plan. For their second effort they decided to take Schmidt from her apartment in the early morning and take her to the bank, with Simmons again serving as the lookout.
By the way, the degree of Schmidt's complicity, if any, in the crime is at issue. The government says the evidence showed she was abducted; Simmons argues that she was an accomplice. In any event, Simmons did not make it to the scene of this second attempt (he stayed home to watch his kids), but did participate in a series of phone calls with Mann over the course of the morning of the robbery, during the time that Mann assumed Simmons's lookout duties. The new plan involved having Schmidt open the door to the bank herself. At this point, Simmons argues, the robbery developed beyond the plan he had laid out and to which he had agreed.
What Mann and Campbell testified to at trial was that Campbell went to Schmidt's apartment at 3:30 a.m. wearing a mask and carrying an unloaded gun. He was sup-posed to take her to the bank to open the door at that point, but Schmidt informed Campbell that they would have to wait until later that morning so a co-worker could give them an additional code that would open the vault. Campbell waited in Schmidt's apartment for more than three hours, and then drove with Schmidt in her car to the bank. Mann, who was unaware of the change of plan, apparently circled the neighborhood for about three hours before arriving at the bank and seeing Campbell's car there. Schmidt let Campbell into the bank where they waited near the vault until Schmidt's co-worker Marlene Kasten arrived. Campbell threatened Kasten with the unloaded gun and she gave him the vault code. Camp-bell opened the vault, grabbed $177,000, and then left Kasten and Schmidt at the bank with a warning not to call the police for at least five minutes as he fled with Mann. Mann and Campbell divided the money and gave Simmons $30,000 as part of his take in the robbery.
Eventually Mann and Campbell got caught and were charged with bank robbery. Despite their promises in recorded phone conversations from jail that they would not snitch (Mann directly to Simmons and Campbell through an intermediary), they flipped and testified against Simmons at his trial.
Simmons was charged with three counts: conspiracy, 18 U.S.C. § 371, armed bank robbery, 18 U.S.C. § 2113, and use of a firearm during a crime of violence, 18 U.S.C. § 924(c)(1)(A). As noted, Mann and Campbell testified at his trial, providing the most damning evidence against him. Their testimony was corroborated by an engineer from Sprint who reported on the high volume of calls between Simmons and Mann during the time of the robbery, calls which allowed the engineer to provide a pinpoint map of Mann's travels over the course of the morning of the robbery.
At the end of the trial, the prosecutor displayed a chart, summarizing the government's case, to the jury with photographs of all three robbers, including a picture of Simmons with the top part of his bright orange jail shirt visible. Defense counsel objected and asked for a mistrial, but the district court instead implicitly overruled the mistrial motion and ordered the prosecutor to proceed after removing the chart from the jury's view.
Also relevant to the defendant's appeal is the prosecutor's statement during closing argument, when she said, "My only job here is not to defend Antonio Mann, but to compel him to tell you what happened." She also conceded that Campbell's credibility was compromised but that he "pled guilty" ...