United States v. Bitterman, Christoph ( 2003 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-2128
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CHRISTOPHER J. BITTERMAN,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Western Division.
No. 01 CR 50032—Philip G. Reinhard, Judge.
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ARGUED OCTOBER 29, 2002—DECIDED FEBRUARY 25, 2003
____________
Before CUDAHY, COFFEY, and EASTERBROOK, Circuit
Judges.
COFFEY, Circuit Judge. On December 19, 2001, Defen-
dant-Appellant Christopher Bitterman (“Bitterman”) was
convicted before a jury of armed bank robbery and now
appeals his conviction, arguing that the district court
erred by: (1) excluding certain testimony as “collateral” that
Bitterman claims had impeachment value; (2) allowing
the prosecution to “place an undue influence” on Bitter-
man’s heroin addiction; and (3) improperly instructing the
jury. We affirm.
2 No. 02-2128
I. FACTUAL BACKGROUND
On the morning of August 10, 2001, Bitterman and his
friend, Michael Andersen (“Andersen”), decided to rob a
bank in order that they might purchase heroin. They
chose the First Midwest Bank in McHenry, Illinois, as
they knew it had been successfully robbed before and they
were familiar with its security procedures. Their plan
was conceived in Bitterman’s bedroom, with Bitterman
standing guard at the door of the bank holding a gun
while Andersen collected the money from the teller. After
retrieving a pistol-type gun (BB) from beneath Bitter-
man’s pillow and a backpack from his closet, the two
proceeded to the bank in Andersen’s car with Andersen
at the wheel. While the two conspirators were waiting
outside the bank in the car, Bitterman, apparently as a
result of heroin withdrawal, began to vomit. Because of
his sickness, Bitterman offered to drive the getaway ve-
hicle rather than act as a lookout.
Shortly after 12:30 p.m., Andersen entered the bank
wearing a ski mask and holding Bitterman’s pistol in his
left hand. Brandishing the weapon in front of the teller,
Andersen screamed “Give me the F---ing money,” and
threw the backpack on the counter. In the process, the
backpack slid off the counter, so Andersen stuffed the
unmarked money (no dye packs were used) the teller had
placed on top of the counter (approximately $1,800) into
the right-hand pocket of his hooded sweatshirt and ran
out the door, leaving the backpack behind. Shortly after
exiting the bank, Andersen threw the weapon into the
bushes nearby and entered the getaway car.
Several bystanders witnessed Andersen’s flight from the
bank, and one was able to provide the police with the
license number and a description of the getaway car.
Approximately one half hour later, with the aid of the
descriptions of the vehicle and the perpetrators, police
No. 02-2128 3
officers apprehended Bitterman and Andersen in the
vehicle as they were driving towards Chicago. Shortly
after their arrests, Bitterman and Andersen were sepa-
rated and questioned individually. The statements they
gave to the police in effect served to directly contradict
each other.
In a videotaped interview with the police, Bitterman
claimed that the robbery was Andersen’s idea and that
he had rejected Andersen’s invitation to participate in it.
He further claimed that at Andersen’s request, he had
dropped off Andersen for a doctor’s appointment and
was simply driving by when he observed Andersen run-
ning out of the bank with a weapon and a fistful of money.
Andersen’s initial story to the police was opposite that
of Bitterman’s. He blamed the crime on Bitterman alone
and claimed to have been driving by at the exact mo-
ment when he saw his friend Bitterman jogging along
the side of the road and picked him up. Just minutes
after making his first statement to the police, however,
Andersen changed his story and admitted his role in the
crime. He recounted for the police their joint scheme, how
they implemented their plan, and that he had been the
robber and Bitterman the getaway driver.
Bitterman and Andersen were each charged with violat-
ing 18 U.S.C. § 2113(a) (bank robbery by force, violence, or
intimidation). Andersen entered into a plea agreement
and received a sentence reduction in exchange for his
assistance at Bitterman’s trial. Bitterman pled not guilty,
and after a three-day jury trial, was convicted on Decem-
ber 19, 2001. On April 12, 2002, Bitterman was sentenced
to 60 months imprisonment, and timely filed a notice of
appeal. This court has jurisdiction over this appeal pursu-
ant to 28 U.S.C. § 1291.
4 No. 02-2128
II. ANALYSIS
A. “Collateral” Testimony
Bitterman argues that the trial judge erred in rejecting
as “collateral” certain testimony from one of his defense
witnesses. We review the district court’s decision to ex-
clude certain evidence under the abuse of discretion
standard. See United States v. Dreel, 155 F.3d 902, 905
(7th Cir. 1998). We “afford great deference to the trial
court’s determination of the admissibility of evidence
because of the trial judge’s first-hand exposure to the
witnesses and the evidence as a whole, and because of
the judge’s familiarity with the case and ability to gauge
the impact of the evidence in the context of the entire
proceeding.” Id.While being cross-examined, Andersen admitted that
during an interview with the FBI on October 30, 2001, he
had told the authorities that Bitterman had at one time
purchased a nine-millimeter handgun from Dominic
Pantaleo (“Pantaleo”). The government objected to the
question on the grounds of relevancy, arguing that there
was no question that the gun used in the robbery was a
BB gun, not a nine-millimeter handgun. The trial judge
overruled the objection. Later, during the defendant’s case-
in-chief, Bitterman’s defense counsel questioned defense
witness Pantaleo about the nine-millimeter handgun in an
attempt to demonstrate that Pantaleo had never sold
Bitterman the gun. This time, the judge sustained the
government’s objection, ruling that the issue was “collat-
eral” and thus not relevant, and instructed the jury to
disregard any testimony regarding the nine-millimeter
weapon.
Bitterman argues that the district court abused its
discretion when excluding Pantaleo’s testimony concern-
ing the nine-millimeter pistol, and that contradictory
testimony about the gun was a legitimate method for
No. 02-2128 5
“prov[ing] the Government’s chief witness was lying . . . .”
While contradiction is a valid method of impeachment,
see United States v. Kozinski, 16 F.3d 795 (7th Cir. 1994),
it is well-settled that “one may not impeach by contradic-
tion regarding ‘collateral or irrelevant matters,’ ” id. at
805, and that a party may not “contradict for the sake
of contradiction . . . .” Id. at 806.
Here, the district judge properly found that evidence
regarding the nine-millimeter gun was irrelevant. Further-
more, as Bitterman fails to explain how such evidence
served any other purpose than contradiction, we refuse
to disturb the discretion of the trial judge to exclude as
“collateral” the testimonial evidence surrounding the nine-
millimeter gun.
B. Heroin Use
Bitterman also argues that the district court’s decision to
receive in evidence certain testimony regarding Bitter-
man’s past use of heroin was improper, in that it allowed
the government “to place an undue emphasis” on Bit-
terman’s addiction. As Bitterman failed to object to this
testimony at trial, we review the decision to admit such
evidence for plain error. See United States v. Knox, 301 F.3d
616, 619 (7th Cir. 2002). It is well-established that the
plain error standard allows appellate courts to correct
only “particularly egregious errors for the purpose of
preventing a miscarriage of justice.” United States v.
Lieberman, 128 F.3d 1085, 1095 (7th Cir. 1997) (citation
omitted). The alleged error must have been of such grav-
ity as to affect the “substantial rights” of a party, thus
calling into question the “fairness, integrity, or public
reputation of the judicial proceedings.” United States v.
Montenegro, 231 F.3d 389, 393 (7th Cir. 2000) (citation
omitted); see also United States v. Carrillo, 269 F.3d 761,
768 (7th Cir. 2001), cert. denied sub nom. Soto v. United
6 No. 02-2128
States, 122 S. Ct. 1576 (Apr. 15, 2002) (noting that under
the plain error doctrine, reversal is appropriate only
where the trial court’s error is “clear, prejudicial, and
affects substantial rights”) (citation omitted). However,
even if there has been plain error, “we have the power to
correct the error but are not required to do so.” United
States v. Cusimano, 148 F.3d 824, 828 (7th Cir. 1998)
(citing United States v. Olano, 507 U.S. 725, 735 (1993)).
Admission of Andersen’s testimony that he and Bitter-
man used heroin together since their freshman year of
high school does not rise to the level of plain error. De-
spite the fact that the robbery occurred approximately
five and a half years after the two had been in the ninth
grade, the district court found that the evidence of
Bitterman’s drug addiction was relevant to establish
Bitterman’s motive to commit the robbery (in all probabil-
ity so as to finance his serious drug habit of some five
years). Such evidence is permissible under Rule 404(b)
of the Federal Rules of Evidence. See United States v.
Brooks, 125 F.3d 484, 499-500 (7th Cir. 1997). Moreover, as
the judge gave the jury a limiting instruction (regarding
the heroin testimony) to this effect, we are not con-
vinced that the potential prejudice from such evidence
outweighed its probative value. See Brooks, 125 F.3d
at 500.1
1
In the middle of his argument about the evidence of his heroin
addiction, Bitterman asserts—in a perfunctory and undeveloped
manner—that the evidence of his guilt was insufficient for
conviction. We will not entertain Bitterman’s half-hearted and
conclusory argument, as it lacks legal or factual support of any
kind. See United States v. Andreas, 150 F.3d 766, 769 (7th
Cir. 1998) (“We have held time and again that perfunctory
and undeveloped arguments (even constitutional ones) are
waived . . . .”) (citation omitted).
No. 02-2128 7
C. Supplemental Instruction
Bitterman alleges that the district judge erred when he
responded to a jury question presented during the jury’s
deliberations. Specifically, Bitterman claims that the
mere fact that the judge gave the instructions placed “an
undue influence on the aiding and abetting instruction
to the exclusion of others.” When reviewing a district
court’s response to a jury’s request for additional or clar-
ifying instructions, we apply the abuse of discretion stan-
dard. See United States v. Watts, 29 F.3d 287, 291 (7th Cir.
1994). In reviewing a supplemental instruction, we con-
sider whether (1) the instructions given as a whole fairly
and adequately treat the issues; (2) the supplemental
instruction is a correct statement of the law; and (3) the
district court answered the jury’s question specifically.
United States v. Franco, 874 F.2d 1136, 1143 (7th Cir.
1989).
The jury began its deliberations on December 19, 2001.
Later that afternoon, the parties met with the judge to
discuss a request by the jury for clarification. The note
from the jury, which the trial judge read into the record
in the presence of the defense counsel, read as follows:
“We would like someone to clarify the charges against
Bitterman and how it pertains to aiding and abetting
and clarification of the law as applied to bank robbery.
Also, please explain Page 21 [the aiding and abetting
instruction] to us.”
After a discussion with the parties, and over an objection
by Bitterman’s counsel, the judge responded with the
following supplemental instruction:
The defendant has been charged by indictment with
bank robbery. A person indicted for bank robbery can
be found guilty of bank robbery if that person know-
ingly aids, counsels, commands, or induces the com-
mission of that offense. That person must knowingly
8 No. 02-2128
associate with the criminal activity, participate in
the activity, and try to make it succeed. This is set
forth in Page 21 of your instructions. I cannot clarify
this any further as I understand your question.
We disagree with the defendant-appellant’s argument
that the district court, in response to a direct question
from the jury dealing with the statement of the law con-
cerning the language of the aiding and abetting section
of the instruction, placed “an undue influence on the aid-
ing and abetting instruction to the exclusion of others”
thereby prejudicing him. The district judge, in our opin-
ion, did nothing but present the jury with the relevant
portions of the instructions that had already been given to
the jury and with which the defendant had registered
no objection. There is no question that the instructions
given fairly and adequately treated the issues, and that
the supplemental instruction correctly and succinctly
stated the law applicable thereto. In answering the jury’s
question specifically, the district judge was doing pre-
cisely what the Supreme Court has prescribed: “When a
jury makes explicit its difficulties, a trial judge should
clear them away with concrete accuracy.” Bollenbach v.
United States, 326 U.S. 607, 612-13 (1946). We refuse to
hold that the district court abused its discretion in giving
the supplemental instruction dealing with the problem
the jury raised.
We hold that the district judge did not err when (1)
excluding as “collateral” testimony concerning a gun that
was not connected to the bank robbery; (2) allowing the
prosecution to introduce evidence of Bitterman’s heroin
addiction as a motive for the robbery; or (3) providing an
accurate supplemental instruction to the jury in direct
response to the jury’s specific question. We AFFIRM.
No. 02-2128 9
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—2-25-03