United States v. Emmanuel Hart ( 2021 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-3242
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
EMMANUEL L. HART,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:17-cr-00171(1) — Jorge L. Alonso, Judge.
____________________
ARGUED MARCH 2, 2021 — DECIDED APRIL 27, 2021
____________________
Before RIPPLE, HAMILTON, and KIRSCH, Circuit Judges.
KIRSCH, Circuit Judge. Emmanuel Hart was convicted by a
jury of robbing two Chicago banks in violation of 18 U.S.C.
§ 2113(a). On appeal, he argues that the district court erred
when it precluded him from recalling two government wit-
nesses during his case-in-chief. Finding no error, we affirm.
2 No. 19-3242
I
Emmanuel Hart was charged in a two-count indictment
with robbing a branch of the Fifth Third Bank on April 29,
2016, and a branch of the First American Bank on March 20,
2017. The modus operandi of each robbery was similar. A
man entered the bank and handed a teller a note that de-
manded stacks of $100 bills without tracking devices and
warned that the robber had “full-blown AIDS” and nothing
to lose. After the teller handed the man some cash, the man
exited the bank leaving the note behind and boarded a nearby
train to leave the scene of the crime. But the robberies differed
in one important respect: The Fifth Third teller heeded the
robber’s demand and did not include a tracking device, but
the First American teller slipped such a device among the
stacks of cash.
Shortly after the First American robbery, the tracking de-
vice was activated, eventually leading law enforcement to
Hart. To explain how the tracking device investigation pro-
ceeded, the government called Chicago Police Detective Jason
Motyka and FBI Special Agents Michael Lovernick and Ward
Yoder. Agents Lovernick and Yoder testified that they re-
ceived text notifications relaying, in real time, the direction
that the tracking device was traveling—first south, then west,
and finally south again before stopping near the intersection
of 63rd and Halsted Streets. Based on this pattern, they testi-
fied that the tracking device likely traveled south on the “L”
train’s Red Line, and then west and south on buses. Accord-
ingly, law enforcement officers stopped several buses near the
intersection of 63rd and Halsted Streets, including what the
parties refer to as the 63rd Street bus and the No. 8 bus. At the
intersection, Agent Yoder used a handheld device to pinpoint
No. 19-3242 3
the tracking device’s location. The tracking device pointed to
the No. 8 bus, which Detective Motyka and Agent Lovernick
then boarded. Using a surveillance photo from the First
American Bank robbery, the pair identified Hart by his silver
wristwatch and resemblance to the suspect in the photo. Both
also noticed that Hart’s pockets were bulging. Detective
Motyka and Agent Lovernick removed Hart from the bus,
searched his pockets, found cash and the tracking device, and
arrested him.
Along with the tracking device investigation, the govern-
ment introduced a variety of other evidence connecting Hart
with both robberies. For example, the government presented
surveillance videos of Hart riding a southbound Red Line
train that were consistent with the tracking device’s move-
ment as it left First American Bank. And the government in-
troduced public-transit records of cards registered to Hart
that were used on the dates and around the time of both rob-
beries. Additionally, a fingerprint expert testified that finger-
prints on both demand notes left at the banks matched Hart’s.
Hart represented himself at trial and focused his defense
on two arguments. First, the mere fact that law enforcement
found Hart with the cash and tracking device on the No. 8 bus
did not necessarily prove that he robbed the First American
Bank. He could have come upon the cash and the tracking de-
vice another way. Second, he boarded two buses on March
20—first the 63rd Street bus and then the No. 8 bus1—but law
enforcement did not identify him on the 63rd Street bus when
the bus was stopped at the intersection of 63rd and Halsted
Streets. Hart did not connect his arguments at trial, but, as
1 The government stipulated that Hart was, in fact, on both buses.
4 No. 19-3242
discussed below, now attempts to do so on appeal by arguing
that law enforcement was unable to identify him when he was
on the 63rd Street bus because he was not yet in possession of
the cash with the tracking device.
To develop his second argument—that law enforcement
did not identify him when he was on the 63rd Street bus—
Hart cross-examined Detective Motyka, Agent Yoder, and
Agent Lovernick about their search for the robbery suspect.
Hart questioned them about their investigative activities, the
timeline of those activities, the methods used to pinpoint the
tracking device’s location, and the process used to identify
him on the No. 8 bus. Hart also asked each officer how many
buses they had searched and whether they had seen Hart on
any other bus. Detective Motyka testified that, in addition to
the No. 8 bus, he “briefly boarded” the 63rd Street bus but did
not “recall” seeing Hart on that bus. Agent Yoder stated that
he only boarded one bus, the No. 8. Initially, Agent Lovernick
testified that while he did not board the 63rd Street bus, sev-
eral other law enforcement personnel did, including Detective
Motyka and Agent Yoder. Moments later, however, after Hart
repeated his questions, Agent Lovernick said that he “misun-
derstood” Hart’s initial question and that he did not know
who boarded the 63rd Street bus. From this testimony, Hart
established that Detective Motyka briefly boarded the 63rd
Street bus and that Agent Lovernick did not. Further, there is
no evidence, other than Agent Lovernick’s initial testimony
based on a misunderstood question, that Agent Yoder was
ever on the 63rd Street bus (which Agent Yoder denied).
After cross-examination and just before the government
rested, Hart asked for a three-day continuance and to recall
eight government witnesses for his defense, none of whom he
No. 19-3242 5
had subpoenaed. Among the eight were Agent Lovernick, De-
tective Motyka, and Agent Yoder. What followed was an ex-
tensive discussion between the district judge, Hart, and the
government prosecutor, addressing one by one each witness
and Hart’s reasons for recalling them. Over the government’s
objection, the district court allowed Hart to recall Agent Lov-
ernick, but not without hesitation. The district court told Hart
that, when questioning Agent Lovernick, he would pay atten-
tion to whether Hart was “just trying to delay things.” The
district court also warned Hart that he would sustain an ob-
jection to Hart’s question if Hart simply parroted his ques-
tions from cross-examination.
The district court denied Hart’s request to recall Agent
Yoder. During the discussion with the court, Hart explained
that he wanted to ask Agent Yoder about whether he boarded
the 63rd Street bus and when he boarded the No. 8 bus, hop-
ing to impeach the timeline Agent Yoder established on direct
examination. The government argued in opposition that the
answers to Hart’s questions were already in evidence and that
Agent Yoder had answered the questions. In denying Hart’s
request, the district judge explained that: (1) it had allowed
Hart’s cross-examination to go “well beyond” the scope of di-
rect; (2) “all” of the evidence Hart sought to elicit “came out”
on direct; (3) “other evidence” was in the record from which
Hart could argue to fully support his theory; and (4) Hart was
“trying to delay things.”
As for Detective Motyka, the district court initially granted
Hart’s request and asked the government to attempt to recall
Detective Motyka, who was out of state. Hart was hoping to
show that Detective Motyka’s testimony—that he did not see
Hart on the 63rd Street bus—was not true. More specifically,
6 No. 19-3242
Hart wanted to explore how Detective Motyka “could . . . not
see” Hart on the bus if Hart had the tracking device on that
bus and looked like the identification photo Detective Motyka
had on his phone. When initially granting Hart’s request, the
district court limited questioning to that issue alone. After a
break, however, and a renewed government objection to re-
calling Detective Motyka, the district court denied Hart’s re-
quest to recall Detective Motyka. The district court reasoned
that Hart had not subpoenaed any witnesses for his defense,
and that each of Hart’s questions was repetitive and con-
cerned testimony that was “already in evidence” from Hart’s
cross-examination of Detective Motyka.
II
Hart appeals the district court’s denial of his requests to
recall Detective Motyka and Agent Yoder. On appeal, Hart in-
troduces what appears to be a variation of his defense theory
at trial: Hart asserts that law enforcement did not apprehend
him when he was on the 63rd Street bus because he was not
yet in possession of the stolen cash with the tracking device;
rather, he found the cash after exiting the 63rd Street bus but
before boarding the No. 8 bus.2 We are skeptical that Hart
2 Hart’s theory sidesteps important details. Detective Motyka testified
that law enforcement stopped several buses at the intersection. He also
testified that the 63rd Street bus was stopped when he boarded. Thus, un-
der Hart’s theory, the timeline is as follows: Hart was on the 63rd Street
bus without the cash and tracking device when law enforcement stopped
the bus; Detective Motyka then boarded the bus, but did not see Hart; Hart
then exited the 63rd Street bus, found the cash and tracking device, and
then boarded the No. 8 bus; and this sequence occurred all while law en-
forcement officers were actively searching for the location of the tracking
device.
No. 19-3242 7
pressed this theory at trial. During oral argument, Hart
pointed to three pages of the multi-day trial transcript that he
says supports his theory. From Hart’s few comments on the
transcript pages he referenced, several logical leaps are re-
quired to arrive at his theory on appeal. But we will assume
that Hart said enough to properly present the issue now.
Armed with this theory, Hart challenges the district
court’s rulings limiting his ability to recall Detective Motyka
and Agent Yoder for further cross-examination. Hart argues
that the district judge’s ruling violated his Sixth Amendment
rights to confront witnesses and to obtain witnesses in his fa-
vor. The government urges that Hart did not raise a Sixth
Amendment argument at trial and, as a result, any argument
on appeal is forfeited.
To preserve an appellate issue, a criminal defendant “must
make a timely and specific objection in the district court.”
United States v. Hathaway, 882 F.3d 638, 640 (7th Cir. 2018)
(quotation omitted). This ensures that both the court and the
government are aware “of the potential error and the ground
for objection.” United States v. Burns, 843 F.3d 679, 685 (7th Cir.
2016). But it is also true that, generally, courts require less of
pro se defendants than licensed lawyers. See, e.g., Erickson v.
Pardus, 551 U.S. 89, 94 (2007); United States v. Clark, 774 F.3d
1108, 1114 (7th Cir. 2014) (finding pro se defendant preserved
a Rule 404(b) evidentiary argument when his pretrial brief
generally objected to the government’s 404(b) motion); United
States v. Smith, 332 F.3d 455, 458 (7th Cir. 2003) (finding pro se
defendant’s pre-sentencing letter to the court sufficiently no-
tified the court and government of objection to guideline ap-
plication, despite not raising objection at sentencing hearing);
United States v. Sowemimo, 335 F.3d 567, 573–74 (7th Cir. 2003)
8 No. 19-3242
(finding pro se defendant “did enough” to raise drug quantity
objection at sentencing because district court understood de-
fendant’s pro se pre-sentencing filings to raise such an objec-
tion).
Hart’s attempt to recall Detective Motyka and Agent
Yoder notified the district court and the government of his ob-
jections to the rulings that form the basis of his Sixth Amend-
ment challenge. To be sure, Hart did not mention the Sixth
Amendment, the Confrontation Clause, or the Compulsory
Process Clause. But the record demonstrates that both the dis-
trict court and the government understood the Sixth Amend-
ment issues lurking beneath Hart’s objections that he now
presses on appeal. Thus, we address his arguments on the
merits.
A
Hart argues that the district court denied him the oppor-
tunity to confront Detective Motyka and Agent Yoder with
testimony elicited after his initial cross-examinations. Specifi-
cally, Hart asserts that he planned to confront Detective
Motyka with evidence that Hart was on both buses the day of
the robbery and to confront Agent Yoder with Agent Lover-
nick’s testimony (based on a misunderstood question that
Agent Lovernick quickly corrected) that Agent Yoder had
boarded the 63rd Street bus.
The Confrontation Clause guarantees a defendant an op-
portunity to confront witnesses against him, including the
right to cross-examine them. U.S. CONST. amend. VI; Delaware
v. Fensterer, 474 U.S. 15, 20 (1985). But the right does not guar-
antee “cross-examination that is effective in whatever way,
and to whatever extent, the defense might wish”—the district
No. 19-3242 9
court may impose reasonable limits. Fensterer, 474 U.S. at 20.
When a district court limits cross-examination, the first ques-
tion is whether the limitation “directly implicates the Con-
frontation Clause’s core values” triggering de novo review.
United State v. Groce, 891 F.3d 260, 267 (7th Cir. 2018); United
States v. Williamson, 202 F.3d 974, 978 (7th Cir. 2000). Embed-
ded in that question are two more—what are “core values”
under the Confrontation Clause, and when are they “directly”
implicated? This court has recognized that, among others,
“[e]xposing a witness’s motivation, biases, or incentives for
lying” and “[i]mpeaching a witness” are core values. Groce,
891 F.3d at 267 (quotation omitted). And core values are “di-
rectly” implicated when the district court denies a defendant
a “reasonable opportunity” to elicit impeaching or discredit-
ing testimony. United States v. Trent, 863 F.3d 699, 705 (7th Cir.
2017). We have held that an opportunity is reasonable if the
defendant “merely ha[s] the chance to present a motive to lie,”
Trent, 863 F.3d at 705, or to elicit impeachment testimony. See
United States v. Clark, 657 F.3d 578, 584 (7th Cir. 2011)
But what if a defendant’s argument indirectly implicates a
core value—stated differently, what if the defendant was
given a “reasonable opportunity” to impeach or discredit the
witness? In that case, “any constitutional concerns vanish”
and the court reviews the district court’s limitation for abuse
of discretion. Clark, 657 F.3d at 584. To that end, the district
court’s discretion to limit cross-examination is “wide,” and
the limitations may be based on, among other reasons, “har-
assment, prejudice, confusion of the issues, the witness’s
safety, or interrogation that is repetitive or only marginally
relevant.” Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986).
10 No. 19-3242
Although Hart’s argument on appeal implicates core Con-
frontation Clause values, it does not do so directly; the district
court provided Hart ample opportunity to impeach or dis-
credit Detective Motyka and Agent Yoder on cross-examina-
tion in the government’s case-in-chief. The district court
placed no limits on Hart’s initial cross-examinations of Detec-
tive Motyka and Agent Yoder, allowing Hart to ask questions
beyond the scope of direct examination. The district court
stressed to Hart during his extensive colloquy concerning re-
calling witnesses that Hart had asked—and Detective Motyka
and Agent Yoder answered—the questions he wished to put
to both if recalled. 3 Hart has never explained (at trial or on
appeal) how Detective Motyka’s answers would have differed
if confronted with the fact of Hart’s presence on the 63rd
Street bus—it made no difference because Detective Motyka
had already testified that he did not see Hart on the 63rd
Street bus when he briefly boarded it. Hart also has not ex-
plained how Agent Yoder’s answers would have differed had
Hart confronted him with the substance of Agent Lovernick’s
testimony—Agent Yoder testified that he only boarded the
No. 8 bus. Given that Hart’s proposed cross-examination
would have elicited no new information, his questions are
merely “redundant” inquiries that, at most, may have
“add[ed] extra detail” which the district court was well within
3In his reply brief, Hart poses eleven questions that he “could have
asked” Detective Motyka and Agent Yoder. None of those questions were
raised by Hart when he moved to recall both witnesses. We do not con-
sider the questions for two reasons. First, Hart forfeited the line of ques-
tioning by not raising it at trial. See Burns, 843 F.3d at 685. Second, our
analysis focuses on the district court’s decision to limit cross-examination
in light of the evidence at trial, not an alternative line of questioning on
appeal.
No. 19-3242 11
its discretion to refuse. United States v. Khan, 508 F.3d 413, 418
(7th Cir. 2007) (citation omitted); see also Stewart v. Wolfen-
barger, 468 F.3d 338, 348–49 (6th Cir. 2006) (holding that the
district court’s denial of defendant’s request to recall fact wit-
ness did not violate the Confrontation Clause because defend-
ant’s proposed questions would not elicit new information,
and defendant could impeach the fact witness’s testimony
with that of later witnesses in closing).
B
Hart also argues that the district court’s denial of his re-
quest to recall Detective Motyka and Agent Yoder violated his
Sixth Amendment right to compulsory process.
The Sixth Amendment guarantees a defendant the right to
“have compulsory process for obtaining witnesses in his fa-
vor.” U.S. CONST. amend. VI. Generally, that means a defend-
ant has a right to “offer the testimony of witnesses, and to
compel their attendance.” Makiel v. Butler, 782 F.3d 882, 907
(7th Cir. 2015) (quoting Washington v. Texas, 388 U.S. 14, 19
(1967)). However, the right is not unlimited. “[A] defendant’s
right to compulsory process is abridged only when a court
denies the defendant an opportunity to secure the appearance
at trial of a witness whose testimony would have been rele-
vant and material to the defense.” Williamson, 202 F.3d at 979(quotation and citation omitted). As the Supreme Court has
described it, evidence is “material” if a “reasonable likeli-
hood” exists that it “could have affected the judgment of the
trier of fact.” United States v. Valenzuela-Bernal, 458 U.S. 858,
873–74; see Makiel, 782 F.3d at 908. Evidence that is “merely
cumulative to the testimony of available witnesses” does not
meet the materiality requirement. Valenzuela-Bernal, 458 U.S.
at 873.
12 No. 19-3242
When reviewing a compulsory process claim that stems
from the exclusion of evidence, like in this case, we apply an
abuse of discretion standard of review. See United States v.
Hoover, 246 F.3d 1054, 1061–62 (7th Cir. 2001); Williamson, 202
F.3d at 979. The district court did not abuse its discretion
when it barred Hart from recalling Detective Motyka and
Agent Yoder. As explained above, their testimony would have
been cumulative to the testimony already in the record. Addi-
tionally, even if their testimony would have been exculpatory
(which is doubtful), there is no reasonable likelihood that ad-
ditional testimony from Detective Motyka or Agent Yoder
could have affected the judgment of the jury. The evidence
against Hart was overwhelming. Perhaps most significantly,
neither witness could help Hart explain to the jury why his
fingerprints were left on the demand notes at each bank. Hart
failed to explain this evidence at trial, and he has not at-
tempted to do so on appeal.
AFFIRMED