United States v. May, Kelly J. ( 2000 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 99-2785 and 99-2880
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
KELLY JO MAY and LEE TERRY,
Defendants-Appellants.
Appeals from the United States District Court
for the Central District of Illinois.
No. 98 CR 20061--Michael P. McCuskey, Judge.
Argued January 12, 2000--Decided June 6, 2000
Before POSNER, Chief Judge, COFFEY and RIPPLE,
Circuit Judges.
COFFEY, Circuit Judge. On October 8, 1998, a four-
count indictment was filed in the Central District
of Illinois charging Kelly Jo May and Lee Terry
with events arising out of the armed bank robbery
of the Champaign County Schools Employees Credit
Union in Champaign, Illinois./1 After the
juries/2 returned guilty verdicts against both
defendants, the judge sentenced May to 147 months’
imprisonment, five years’ supervised release, a
$300 special assessment, and restitution in the
amount of $11,038.75./3 The judge then sentenced
Terry to life imprisonment, a $300 special
assessment, and restitution also in the amount of
$11,038.75./4 On appeal, both defendants-
appellants argue that the trial judge erred in
denying their motion to suppress the evidence
seized from their residence. May also argues that
the court erred in allowing the jury to continue
its deliberations, at least without conducting a
hearing, after the district court judge received a
note from the jury foreperson suggesting that a
juror may have been a crime victim. We affirm.
I. BACKGROUND
On September 14, 1998, at approximately 2:00
p.m., when only three employees were present in
the bank,/5 Terry and May entered the Credit
Union in Champaign, Illinois. The two armed
defendants approached bank employees, Ciara
Bradley and Tasha Jenkins, and May ordered
Bradley to "put the money in the bag." Terry then
walked down the hallway to Heather Winkleman’s
office, brought her to the front, and told
Bradley and Jenkins to open all the teller
drawers. Winkleman then asked Terry if he also
wanted the money from the vault and he responded
that he did. The two went back into Winkleman’s
office and retrieved the vault keys; Winkleman
opened the vault and handed the money to the two
perpetrators./6 Terry and May left the bank with
$11,038.75.
After leaving the bank, Terry and May went to a
nearby Illinois power station and removed the
clothing worn during the robbery, poured gasoline
on the clothes, and ignited them. Thereafter, the
two then went to the General Auto Market in
Urbana, Illinois, and Terry made a $4,000 cash
down-payment on a 1995 GMC van.
On September 15, 1998, the Champaign, Illinois,
Police Department (CPD) received an anonymous tip
that it was Terry who had robbed the bank and
that a female accompanied him during the bank
robbery. On September 16, 1998, CPD received
another anonymous tip stating that May and her
boyfriend "Teddy" had robbed the bank, and that
they had just bought a van.
The next day, September 16, 1998, a detective
went to Terry’s and May’s residence and saw a
1995 GMC van. Upon inspection of a sticker on the
van, the officer discovered that it had just been
purchased from the General Auto Market in Urbana,
Illinois. The detective proceeded to the
dealership and learned that Terry and May had
purchased the van on September 14th, just a few
hours after the robbery, with a $4000 cash down-
payment.
The dealership informed the detective that
Terry’s and May’s $4000 down-payment was
deposited in the night deposit-box at First of
America Bank located at the Meijer Store in
Champaign, Illinois. Police officers were later
able to retrieve and examine the deposit and
found fourteen $20 bills with serial numbers that
matched the recorded bait money taken during the
robbery./7
On September 16, 1998, based on the information
described above, a federal arrest warrant for
Terry was issued. At this time, federal
investigators learned that the Illinois State
Police had obtained a search warrant for Terry’s
and May’s residence in Champaign on an unrelated
drug matter. While serving both the state search
warrant and federal arrest warrant,/8 officers
recovered $1,186 cash (three $20 bills were bait
money) and five grams of marijuana, and Terry was
taken into custody.
Kenneth Faust, who also resided with Terry and
May, was interviewed by police officers and
informed them that a few days before the search,
he had seen a gun in a small blue diaper bag in
one of the bedrooms of the residence, and that
Terry was "touchy" about people going near a shed
located behind the residence. He further stated
that Terry and May had recently complained about
being broke and that they now were spending a lot
of money.
Based on Faust’s statements, officers obtained
a federal search warrant for the shed./9 Once
inside the shed, officers located a blue diaper
bag which contained two loaded weapons, a .32
caliber H&R revolver and a .357 Magnum S&W
revolver. Officers also discovered additional
rounds of ammunition.
Police officers also interviewed Terry, who
denied any involvement in the robbery. However,
two days later, on September 18, 1998, May was
interviewed and she admitted that she and Terry
committed the robbery and that both of them were
armed, at the time of the robbery, with the
weapons found in the shed. She further confirmed
that the two had used the money from the robbery
to make the down-payment on the van; she
explained that she was having financial problems
and when she mentioned robbing a bank, Terry told
her that it could be done and that he even knew
of a good place to rob.
Before going to trial on charges stemming from
the Credit Union robbery, Terry and May filed a
motion to suppress the currency seized at their
residence based on the allegation that the state
search warrant did not authorize the seizure of
the money. As recounted earlier, investigators,
after obtaining a federal arrest warrant for
Terry for the bank robbery, learned that a local
drug task force had obtained a state search
warrant for Terry’s and May’s residence. In part,
the state search warrant authorized the search
for and the seizure of:
Any substance of any color which purports to be
cocaine or any of its derivatives; all
paraphernalia of any kind, including, but not
limited to, scales, packing material such as
plastic bags and twist ties, and cutting agents,
used for the manufacture or distribution of
cocaine; all monies found in close proximity to
the aforesaid items . . . .
Terry and May argued that because no cocaine was
discovered at their residence, the police were
without the authority to seize the money and it
should therefore be suppressed.
The judge rejected the defendants’ argument,
stating:
This court specifically finds that the officers
investigating the credit union robbery would have
sought the federal search warrant even if the
currency had not been seized. The federal search
warrant authorized a search of Terry’s residence
and the metal shed for evidence related to the
Credit Union robbery, including "United States
Currency which may have been taken in the
robbery." The [money] would have been recovered
in executing the federal search warrant.
Accordingly, the federal search warrant supplied
an independent source for the seizure of the
money. This court finds that the [money] was
"rediscovered" in a legal search supported by a
valid search warrant, and the evidence need not
be suppressed.
May and Terry were subsequently tried before
separate juries, and during jury deliberations at
the close of May’s trial, the jury foreperson
sent the following note to the trial judge:
We are having some problems. One of the jurors
keeps mentioning "Have you ever had a .357 magnum
put in your face." He said he had and it was
scary. He never mentioned he was a victim of a
crime. This is bothering other jurors.
The judge brought the note to the attention of
both counsels and the following discussion
occurred:
AUSA: I think the note is ambiguous, Your Honor.
I mean, if there’s a suggestion that somebody
didn’t tell the truth during jury qualification,
I don’t think that’s accurate because it doesn’t
say--you could have a gun stuck in your face for
a variety of reasons.
But, I think it’s--
JUDGE: That’s true. You could have it in
play.
AUSA: Right. In a shooting range.
JUDGE: Right.
AUSA: I mean, you wouldn’t want someone sticking
one in your face. And it doesn’t say it’s in the
course of a crime.
JUDGE: Right.
AUSA: So, that suggestion, I think, is we don’t
know.
Even more fundamentally, this intrudes into the
deliberative process of the jurors. . . . They’ve
raised a concern. I think what we should do is
say, "Thank you for your concern. Please continue
deliberating."
They haven’t raised any--they haven’t asked for
anything. They haven’t said they are having
difficulty, or this is impeding their ability to
reach a verdict. I think we should acknowledge
the fact that we’ve got their note, that we share
their concern, and please continue deliberating.
That would be my suggestion.
COURT: Mr. Schurter [defense counsel].
* * *
SCHURTER: I guess I would have to concur with [the
AUSA], though, in that I don’t--it doesn’t sound
to me like it asks for any particular relief; and
not knowing what they really had in mind, I
suppose any gratuitous comments from the Court
could be either helpful or harmful to either
side. And so I, I don’t know.
I, I mean, I understand obviously it’s not
appropriate to have an ongoing conversation with
the jurors by way of the notes. But, but we--on
the defense side, we do have a serious concern
if, if the, if the, if there is a juror in there
who didn’t answer the Court’s questions
truthfully and that’s what they’re saying, then
we really are concerned.
COURT: The Court appreciates comments of counsel
and believes that the appropriate way to handle
it at this time is to, one, acknowledge the note
and, two, to respond in a manner that the Court
believes is appropriate, which, of course, is not
to make any further inquiry into the note or in
any way try to respond to the note. But the Court
believes that a response of some type is
appropriate.
So, the Court at this time has fashioned the
following response. "To the jury: The Court has
received your note. The Court believes you have
all the instructions necessary for your
deliberations on the verdicts in this case.
Please continue your deliberations."
Any objections to that, . . . ?
AUSA: No, Your Honor.
COURT: Mr. Schurter?
SCHURTER: No, Your Honor.
(Emphasis added). The judge sent this note to the
jury and, approximately thirty minutes later, the
jurors returned a guilty verdict against May on
all counts.
Approximately a week after May’s trial, a
separate jury also found Terry guilty on all
counts charged. As mentioned before, the trial
court then sentenced May to 147 months of
confinement and Terry to life imprisonment. May
and Terry appeal.
II. ISSUES
On appeal, we consider: 1) whether the district
court erred in denying May’s and Terry’s motion
to suppress the money found at their residence;
and 2) whether the district court erred in
allowing May’s jury to continue its deliberations
after receiving a note suggesting that a juror
may have been a crime victim.
III. DISCUSSION
A. May’s and Terry’s Motion to Suppress
In reviewing a district court’s decision on a
motion to suppress, this court reviews the
propriety of the search de novo, but we review
all findings of historical fact and credibility
determinations under the clear error standard.
See United States v. Brown, 188 F.3d 860, 864
(7th Cir. 1999).
On appeal, the two defendants argue that the
currency seized from their residence should be
suppressed because the federal search warrant was
a "direct result" of the illegal seizure of the
currency pursuant to the state search warrant. In
other words, Terry and May argue that the federal
search warrant would never have been issued if
not for the illegal seizure of the money, and
therefore the currency should not have been
admitted under the independent source doctrine.
However, the appellants ignore the fact that
federal law enforcement officials had a wealth of
information concerning their involvement in the
Credit Union robbery.
In United States v. Markling, 7 F.3d 1309, 1315
(7th Cir. 1993) (bold added), this court stated,
To understand the independent source doctrine,
one must begin with the competing interests at
stake when courts decide whether to exclude
evidence on Fourth Amendment grounds. The
exclusionary rule is meant to deter illegal
police conduct by punishing that conduct.
Salgado, 807 F.2d at 607. The exclusionary rule
attempts to accomplish this purpose by
prohibiting the introduction of evidence obtained
as the direct or indirect result of an illegal
search. Murray, 487 U.S. at 536, 108 S. Ct. at
2532. The exclusionary rule thus deters illegal
police conduct by removing the incentive for
illegal conduct. But the exclusionary rule also
involves significant social costs. The
exclusionary rule deprives juries of probative
evidence of a crime; and by depriving juries of
probative evidence, the exclusionary rule often
works at odds with society’s interest in
prosecuting and punishing crime. See Nix v.
Williams, 467 U.S. 431, 442-43, 104 S. Ct. 2501,
2508, 81 L. Ed. 377 (1984). It is necessary to
strike a balance between the competing interests.
"The exclusionary rule is a sanction, and
sanctions are supposed to be proportioned to the
wrong-doing that they punish." Salgado, 807 F.2d
603 at 607.
The Supreme Court has determined that "’the
interest of society in deterring unlawful police
conduct and the public interest in having juries
receive all probative evidence of a crime are
properly balanced by putting the police in the
same, not a worse, position than they would have
been in if no police error or misconduct had occurred.’"
Murray, 487 U.S. at 537, 108 S. Ct. at 2533
(quoting Nix, 467 U.S. at 443, 104 S. Ct. at
2509) (emphasis in Nix); see also Salgado, 807
F.2d at 607-08. Excluding evidence that the
police ultimately obtained by independent legal
means would not put the police in the same
position they would have been in if they had not
committed any illegal conduct; instead, it would
put them in a worse position. Id. The independent
source doctrine avoids this by allowing the
introduction of evidence discovered initially
during an unlawful search if the evidence is
discovered later through a source that is
untainted by the initial illegality. Id.
Under the independent source doctrine, if police
discover items x and y during an illegal search,
but later discover item z during an independent
legal search, item z is admissible in evidence
because it was derived from an independent
source. Murray, 487 U.S. at 537-38, 108 S. Ct. at
2533. That was the situation in Segura. See 468
U.S. at 813-14, 104 S. Ct. at 3389. But the
doctrine as stated in Murray goes further. At
issue in Murray was evidence that agents seized
from a warehouse pursuant to a warrant after the
agents had previously observed the evidence
during an illegal entry into the warehouse. See
Murray, 487 U.S. at 535-36, 108 S. Ct. at 2532.
Under the independent source doctrine as stated
in Murray, if during the untainted legal search
police discover not only item z but also
rediscover items x and y, x and y as well as z
are admissible. Id. at 538, 108 S. Ct. at 2533;
see also United States v. Herrold, 962 F.2d 1131,
1140 (3d Cir. 1992).
The reasoning behind the admission of evidence
under the independent source doctrine is that
although the police should not benefit from their
unlawful conduct, neither should they be put in
a worse position by excluding evidence that was
later discovered or re-seized by independent
legal means. See Murray, 487 U.S. at 537, 542
(citation omitted). Thus, the central question
under the independent source doctrine is whether
the evidence at issue was obtained by independent
legal means.
In Markling, this court set forth a two-part
test to determine whether the evidence was, in
fact, obtained by independent lawful means: 1)
whether the officer’s decision to seek the
warrant resulted from what he had seen (or, in
this case, seized) during the unlawful search;
and 2) whether the illegally obtained evidence
caused the magistrate to issue the search
warrant. See Markling, 7 F.3d at 1315-16. If the
answer to both of these inquiries is no, then the
evidence need not be suppressed despite the fact
that it was initially unlawfully obtained.
Based on information obtained from Kenneth Faust
and other sources, law enforcement knew the
following facts: 1) Terry and May were both
"broke" immediately before the Credit Union
robbery but were now flush with money and
suddenly had the means to put down $4000 on a van
on the same afternoon of the robbery; 2) that
some of the recorded "bait bills" were recovered
from the money used to purchase the van; 3) Terry
had a .357 magnum (the gun used in the Credit
Union robbery) in the house several days before
the robbery but police did not find it pursuant
to the state authorized search; 4) Faust had told
the police that Terry had a hat that was similar
to one worn by the perpetrators but no such hat
was recovered; 5) May and Terry fit the general
description of the robbers given by the Credit
Union employees; and 6) May and Terry had been
identified as the perpetrators of the Credit
Union robbery in separate anonymous tips.
These facts are certainly sufficient to
establish the necessary basis for the issuance of
a federal search warrant absent any reference to
the $1186 discovered pursuant to the state search
warrant. In this case, although the currency
seized by the police was not covered by the state
search warrant, the federal search warrant, which
was issued the next day, had an independent basis
for seizure of the money. Given Faust’s
statements and the federal investigators
extensive information concerning the robbery, we
are of the opinion that the district court’s
finding that law enforcement officers would have
sought a federal search warrant to search Terry’s
and May’s residence, the shed, and any money
found in either place, even without the seizure
of the currency pursuant to the state search
warrant, was not clearly erroneous. Thus, the
cash was properly admitted under the independent
source doctrine.
B. The Note From the Jury in May’s Trial
May argues that she did not receive a fair
trial by an impartial jury because the court
allowed jury deliberations to continue after it
received the note from the jury foreperson,
which, according to May, suggested that one of
the jurors was less than truthful during voir
dire examination when asked whether he had ever
been a victim of a crime. Therefore, according to
May, she is entitled to a new trial under
McDonough Power Equipment v. Greenwood, 464 U.S.
548, 556 (1984) ("We hold that to obtain a new
trial in such a situation, a party must first
demonstrate that a juror failed to answer
honestly a material question on voir dire, and
then further show that a correct response would
have provided a valid basis for a challenge for
cause. The motives for concealing information may
vary, but only those reasons that affect a
juror’s impartiality can truly be said to affect
the fairness of a trial."). Because May failed to
object, in fact defense counsel affirmatively
supported the trial judge’s decision to send the
jury a note admonishing them to continue
deliberations, we review her claim under the
plain error standard. See Fed. R. Crim. P. 52(b);
United States v. Davis, 15 F.3d 1393, 1407 (7th
Cir. 1994).
It is important to note that May’s counsel
never requested that the court take any action
whatsoever with respect to the note. Instead,
both counsel for May and for the government
agreed with the trial court that the note from
the jury foreperson was at best ambiguous and did
not necessarily mean that any juror had been
untruthful during voir dire. Furthermore, neither
party requested a hearing to further explore the
contents or meaning of the note, and the court
did not find anything in the note sufficiently
alarming to justify its holding a hearing sua
sponte. Additionally, both counsels, after
conferring with the court, affirmatively
supported the trial judge’s decision to send a
note to the jury telling them to continue
deliberations.
When considering the totality of the information
contained in the record, we are of the opinion
that May has failed to establish that any juror
failed to honestly answer a material question
during jury selection. As the trial judge, the
AUSA, and defense counsel acknowledged, there are
numerous situations in which an individual may
have a gun pointed at him or her that do not
include being a victim of a crime. Based on the
statement above and the fact that both counsels
approved of the judge’s handling of the matter,
we refuse to hold that the judge committed plain
error in responding to the jury’s note as he did.
We are also convinced that the district court did
not commit plain error in failing to conduct a
hearing sua sponte to explore the contents of the
note in light of the fact that both parties
agreed that the note was ambiguous.
The decision of the district court is
AFFIRMED.
/1 Count one charges Terry and May with the armed
bank robbery of the Credit Union, in violation of
18 U.S.C. sec.sec. 2113(a), (d); Count two
charges that the defendants used and carried a
firearm during a crime of violence, in violation
of 18 U.S.C. sec. 924(c)(1); and Counts 3 and 4
charge Terry and May, respectively, with being a
felon in possession of a firearm, in violation of
18 U.S.C. sec.sec. 922(g) & 924(e)(1).
/2 On December 3, 1998, the trial judge granted the
government’s oral motion to sever the trials of
the two defendants.
/3 May was sentenced to 87 months’ imprisonment on
both Counts one and four, to be served
concurrently and concurrent with each other, and
60 months’ imprisonment on Count two to be served
consecutively to the 87 months. Additionally,
May’s supervised release was five years on Count
one and three years on each of Counts two and
four to be served concurrently.
/4 Terry was ordered to be confined for a term of
life plus 60 months. Terry’s sentence consisted
of life on Count one and 327 months on Count
three to be served concurrently and concurrent
with each other, and 60 months on Count two to be
served consecutively.
/5 Although Terry and May robbed the Champaign
County Employees Credit Union they were charged
with armed bank robbery. We will therefore refer
to the institution which they robbed
interchangeably throughout the opinion as either
the "Credit Union" or the bank.
/6 Winkleman told the probation officer that she is
now scared to be at work alone and becomes
frightened when the bank is not busy. She further
stated that because of the robbery she has
difficulty concentrating, sleeping, has
nightmares, and has even considered changing
careers.
/7 The "bait bills" consisted of thirty-five $20
bills which had been photocopied prior to being
placed in the teller drawers to allow for later
comparison in the event of a robbery.
/8 The detectives investigating the Credit Union
robbery coordinated the execution of the federal
arrest warrant for Terry with the execution of
the state search warrant dealing with cocaine. At
approximately 9:25 p.m., on September 16, 1998,
members of the Champaign, Illinois, Police
Department SWAT team entered Terry’s and May’s
residence. Once the SWAT team secured the house,
Terry was arrested and a multi-jurisdictional
drug task force performed the search of the
house.
/9 The federal search warrant was obtained in the
early morning hours of September 17th and not
only authorized the search of the shed behind his
house, but also the money seized in the initial
search of Terry’s residence pursuant to the state
search warrant.