Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 08 C 6666-John W. Darrah, Judge.
The opinion of the court was delivered by: Clevert, District Judge.
Before MANION and WILLIAMS, Circuit Judges, and CLEVERT, District Judge.*fn1
Leon Mayes died from mul-tiple gunshot wounds shortly after midnight on Octo- ber 10, 2000. Andre Brown and Derrick Stevens were charged and found guilty of first-degree murder in separate but simultaneous trials. During deliberations, a sheriff taking forensic evidence to the Stevens jury noticed that the Brown jury had an inadmissible police report. Brown maintains that the jury's exposure to that report had a substantial and injurious effect on the verdict. However, because the police report was cumulative of evidence before the jury, the jury was properly instructed, and exposure to the report was harmless under Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S. Ct. 1710, 123 L. Ed. 2d 353 (1993), we affirm.
Brenda Green testified that she was sitting in the driver's seat of her parked car with her boyfriend, Leon Mayes, in the front passenger seat, when a silver Pontiac Sunbird backed up so it was right next to her car. Green recognized the driver as "Striker," who had dated her sister, and the passenger as "Poo," who had dated her friend. She had known each man for about five years. In addition, Green noticed that two others sat in the backseat of the Pontiac and knew the silver Pontiac belonged to "Striker's" girlfriend, Valencia. She recognized "Banks" as one of the people sitting in the back-seat because he had gone to grammar school with Green's sister.
Green heard someone in the Pontiac yell, "There go that m----- f-----." The car then drove off at Mayes's request. The Pontiac pursued Green's car in a high speed chase for several blocks remaining "right behind" her. When Green turned left from 51st Street onto Ashland Avenue, she heard gunshots. Mayes said that "Striker" was shooting at her car. Looking in the rearview mirror, Green saw "Striker's" left hand coming out of the car with a gun. Mayes told Green to slow the car down and to jump out, and she did. Mayes remained in the car as it rolled down the street. The Pontiac then pulled over to the side of the street, "Poo" got out, ran up to Green's car, and shot into the passenger side of the car where Mayes was sitting. With his last shot, "Poo" said: "We got that m-----f-----. Bar None, running it." "Poo" got back into the Pontiac and "Striker" drove away.
Green approached her car, which had stopped against a pole at 50th Street and Ashland Avenue. She found Mayes "shot up in a lot of blood." At the scene, Green told police that "Striker" and "Poo" were responsible for the shooting.
Viewing photographs at the police station that same night, Green identified Andre Brown, Derrick Stevens, and Marlin Gosa, as "Striker," "Poo" and "Banks" respectively. She also identified all of them in lineups. Green further identified Brown in open court as one of the shooters, reiterating that he was "Striker" and that he had shot Mayes.
In addition, Marlin Gosa testified that he, Brown and Stevens were members of the Black P Stones gang, and identified Brown as "Striker." Prior to the trial, Gosa provided a signed statement and grand jury testimony detailing his eyewitness account of Mayes's murder. The statement and grand jury testimony indicated that Gosa was standing on a street corner, when "Dre" (a/k/a Andre Brown) appeared driving a gray Pontiac. Stevens sat in the Pontiac's front passenger seat. Brown and Stevens tried to convince Gosa to accompany them to a nightclub for Brown's birthday. Gosa declined but asked Brown to drive him home.
After driving a few blocks, Brown spotted a familiar man and woman sitting in an old Chevrolet. Brown passed the Chevrolet, then reversed to pull even with it and shouted, "She with that m----- f-----." The woman behind the wheel said something and drove away suddenly. She then led Brown on a high speed chase. During the chase, Gosa saw Brown sticking a gun through his window and fire it at the man in the Chevrolet's front passenger seat. The chase ended when the woman jumped out. Brown stopped the Pontiac and Stevens exited holding Brown's gun. Stevens ran towards the Chevrolet, firing repeatedly into its passenger side. Fleeing from the shooting, Brown remarked, "The b----better not tell," referring to the woman who witnessed the crime. Brown, a Black P Stone general, instructed Gosa not to talk to police about the murder.
Notwithstanding his statement and grand jury testimony, Gosa failed to respond to the subpoena to appear at Brown's trial. After being arrested and forced to appear, Gosa claimed-despite his earlier testimony and the recovery of his fingerprints on Valencia Washington's Pontiac-he was not with Brown on the night of the murder. Gosa conceded that he gave a handwrit- ten statement and testified before the grand jury that he was in a car with Brown and Stevens on October 10, that the car was involved in a high speed chase, and that Brown and Stevens had shot Mayes. Nevertheless, Gosa maintained that the police told him what to say in his statement and that he lied to the grand jury because the police threatened to charge him with murder. As to the sequence of events surrounding the car chase and the shootings, Gosa's signed statement and grand jury testimony were not dissimilar from Green's testimony.
The jury heard that at the time of the murder, Brown lived with Valencia Washington, the mother of his child and owner of the silver Pontiac involved in the murder. Brown had a set of keys to Washington's car and it was not unusual for him to drive it. When Brown returned the morning after the shooting and heard that police had visited looking for him, he fled. Washington did not see Brown again for over ten months.
Soon after Mayes was shot, Chicago Police Officer James Sullivan interviewed several witnesses to the murder, including Green. Sullivan summarized the information he gathered from the interviews in a case report. The one-page, two-sided report listed six witnesses to the crime, named "Pooh" and "Striker" as the offenders, noted the offenders were members of the "Stones," provided a description and license plate number of the offenders' vehicle, and included a brief description of the crime. Of the six witnesses listed in the document, one was the murder victim, Mayes, one was Green, and one was Kenneth Thornton. Mayes was witness 1, Green was ...