Argued March 1, 2013.
Appeals from the United States District Court for the Eastern District of Wisconsin. No. 11-cr-52 — J.P. Stadtmueller, Judge.
Before Rovner, Williams, and Hamilton, Circuit Judges.
ROVNER, Circuit Judge.
On November 1, 2011, a jury found Robert R. Brown guilty of armed bank robbery under 18 U.S.C. §§ 2 & 2113(a) and (d), and brandishing a firearm in connection with a crime of violence under 18 U.S.C. §§ 2 and 924(c)(1)(A)(ii). Those charges stemmed from the armed robbery of the Guaranty Bank in Milwaukee, Wisconsin, on October 21, 2010. Dante D. Jones acknowledged participating in that robbery as a getaway driver, but the government agreed to drop that charge against him as well as the charge in a second bank robbery, and to prosecute him only on a third bank robbery charge, and Jones testified against Brown in Brown's trial for the Guaranty Bank robbery.
Brown appeals his conviction arguing that the court allowed the government to introduce expert testimony as lay testimony, that the jury instructions reduced the government's burden of proof, and that improper closing argument statements by the government denied him a fair trial. Jones, who pled guilty to reduced charges, appeals only his sentence. This court sua sponte consolidated both appeals.
The central issue in Brown's trial was whether he was one of the two men who entered the bank on October 21 and robbed it. The testimony at trial as to the identity of the perpetrators consisted primarily of Jones' testimony, but also included testimony from the witnesses at the bank at the time and videotapes of the incident. That testimony established that two men entered the bank on October 21, 2010, wearing hats or hoodies, as well as masks or clothing over their faces that revealed only their eyes. Both men wore gloves, and accordingly there was no fingerprint evidence identifying the perpetrators. Because of those efforts to conceal their identities, bank employees could provide only general descriptions of the height, race and ages of the offenders. One of the men brandished a gun throughout the ordeal.
After entering the bank, one of the men shouted for everyone to get down. As one of them jumped over the teller counter, the other pointed his gun at bank employee Alice Paeglow. Paeglow handed money from her register over the counter to the man with the gun. The man behind the teller counter removed money from two drawers, handing at least some of that to his accomplice. Bank teller Stephanie Arndt testified that her register contained a dye pack as well as ?bait money." She testified that a dye pack looks like a pack of $20 bills but contains a sensor that causes it to count down after it exits the bank and then explode, spewing red dye and causing burns. Paeglow also testified that Brown retrieved the dye pack along with cash from her drawer. The assistant bank manager Mariam Qteiry testified that at some point the man behind the counter (identified by Jones as Brown) placed his hand into his left pocket, and the videotape from the bank surveillance cameras also showed him stuffing something into his left pocket as he left the bank.
Jones testified that he and Brown met with Lorenzo Lardy-dell on the morning of the robbery with the intent to purchase marijuana, when Lardydell said he was going to rob a bank and urged them to join him. Jones testified that the plan was for Lardydell to hold the gun and for Brown to hurdle the counter and grab as much money as possible, and after viewing the surveillance video from the bank Jones testified that the robbery proceeded according to that plan. Lardydell had a mask and Brown had torn his shirt to make a face-cover for himself. Jones further testified that when Lardydell and Brown exited the bank, Lardydell was carrying the bag and it began to smoke. They entered the car with the bag still smoking, but as tear gas began to build up Lardydell threw the bag from the car. Lardydell left the car later in order to try to retrieve the bag, and Brown and Jones drove away. Jones testified that approximately 12 blocks north and 2 blocks east of the bank, Brown began to throw money out of his pocket because his pants were essentially on fire. The dye pack had apparently exploded in his pocket where he had stuffed some of the money from the teller drawer. They continued driving to the home of Brown's sister, at which time Brown showed Jones a grapefruit-sized blister on the thigh area of his left leg.
Consistent with that testimony, the police recovered a dye-stained messenger bag containing money, a gun, and a dye pack with part of the words ?Guaranty Bank, " from a street immediately west of the bank. They retrieved the second dye pack from an alley approximately 14 blocks away from the bank. The government also introduced the testimony of Detective Ralph Spano, who participated in the investigation of the case. Spano testified regarding the firearm from the robbery and the number of associates with whom Dante Jones committed crimes, and also provided testimony regarding the characteristics of dye packs. In part, Spano testified that a dye pack contains a timing device that can be set to detonate between 10 to 30 seconds after it passes the bank's exit, and that the timing of the detonation is dependent upon the environment of the bank to ensure that it explodes shortly after the exit to create witnesses that are outside the bank. Spano also testified that upon detonation the dye pack instantly burns at about 400 degrees and releases smoke, tear gas, and red dye. When asked if he had ever personally observed a situation in which a dye pack detonated near a person's skin, Spano responded that he had seen that three to five times in his career and he described his observations. He stated that he had seen people stuff the dye packs down their pants and suffer very badly burned genitalia, place them in the side pants pockets in which the dye packs burned through the inner lining of the pockets and burned their legs, and position the dye packs in large puffy jackets where the packs burned through the jackets but not the inner clothes which were stained with the dye.
The government subsequently introduced photographs of Brown's left leg, but no government witness testified that the marks on his leg were burn marks. Brown, however, produced a witness who testified that he burned that leg when a firework hit him at a family picnic at a park.
Brown also challenged Jones' credibility by presenting evidence to the jury that Jones had a powerful incentive to implicate him in the robbery. Jones was implicated in three bank robberies, and testified that the government did not charge him in two of those robberies, including the Guaranty Bank robbery, dropped one of the two charges in the third robbery, and agreed to recommend a lower sentence for that remaining charge. In addition, Brown demonstrated that Jones lied to the police when he spoke with them about the robberies in March 2011, in that he told the police that Brown was at the house when he and others were planning a different robbery, but in fact Brown was in custody on an unrelated matter on that date. Jones also acknowledged that when he initially spoke to the police he could not immediately recall which leg Brown had burned. Finally, Jones acknowledged that while speaking with the police in March 2011, he learned that Brown was the person who implicated Jones in a previous armed robbery involving Jones' friend, which had resulted in Jones' losing a number of close friendships, and that he was angry about that situation.
Brown first argues that this court should vacate his conviction because the district court erred in allowing Detective Spano to testify as to the nature of dye packs. Brown asserts that Spano thereby presented expert witness testimony without complying with the evidentiary rules cabining such testimony—specifically Federal Rules of Evidence 701 and 702.
Rule 701 provides that ?a witness who is not an expert may offer an opinion when it is: '(a) rationally based in the witness's perception; (b) helpful to clearly understanding the witness's testimony or to determining a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.'" United States v. Mendiola, 707 F.3d 735, 741 (7th Cir. 2013), quoting Fed.R.Evid. 701. Where testimony is based on specialized knowledge within the scope of Rule 702, it has to comply with some safeguards of expert testimony, which include a requirement that such testimony be disclosed to the defendant prior to trial. See United States ...