United States v. White, Johnny R. ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-2040
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOHNNY R. WHITE,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 04 CR 119—J. P. Stadtmueller, Judge.
____________
ARGUED JANUARY 12, 2006—DECIDED APRIL 5, 2006
____________
Before FLAUM, Chief Judge, and BAUER and EVANS,
Circuit Judges.
BAUER, Circuit Judge. Johnny White was convicted of
armed robbery under 18 U.S.C. §§ 2113(a), 2113(d), and
possession of a firearm in connection with that robbery
under 18 U.S.C. § 924(c). He challenges his conviction,
claiming an improper jury instruction, a speedy trial
violation, and an erroneous evidentiary ruling; in addi-
tion he challenges his sentence. We affirm.
I. Background
At 10:45 a.m. on January 9, 2004, a man wearing a ski
mask and carrying a silver gun entered the State Finan-
2 No. 05-2040
cial Bank of Whitefish Bay, Wisconsin, and demanded
money. After the tellers filled his plastic Aldi grocery bag
with money, he left the bank, dropping money as he went.
Responding to an armed robbery call, police officers began
following a black vehicle with two occupants heading
away from the bank. After a high-speed chase, the two men
ran from the vehicle in different directions. The passenger
was carrying a white and orange bag. The officers followed
the driver, later identified as Michael Page, on foot and
eventually apprehended him. Although unable to follow the
passenger, the officers located the bag, which contained
$8,826. Page identified White as the passenger.
White was arrested on April 14, appeared in federal court
on April 30, and was indicted on May 18. Count One
charged him with armed robbery, and Count Two charged
him with use of a firearm during the robbery. The district
court twice granted continuances in the case, given the
uncertain state of sentencing law following Blakely v.
Washington, 542 U.S. 296 (2004), and United States v.
Booker, 375 F.3d 508 (7th Cir. 2004). He granted the
first on July 20, at the government’s request, over White’s
objection. He granted the second on September 17, at
both parties’ suggestion. White was incarcerated from his
arrest until his trial commenced on January 18, 2005. He
never moved to dismiss the charges on speedy trial grounds.
At trial, several witnesses testified for the defense. Nailah
Gentry, White’s eighteen-year-old niece, testified that she
was home sick on January 9. According to Gentry, White
arrived at her house “between 11:30, 12 o’clock.” She also
testified that White’s friend, Isaac Sawyer, called the house
asking for White, and that she handed the phone to White,
but that she could not remember what time that occurred.
On cross-examination, the prosecution elicited that on
January 15, 2004, Gentry told FBI Special Agent Jeffrey
Moore that White did not arrive home until 12:45 p.m. on
January 9. Further, the prosecution produced Ameritech
No. 05-2040 3
phone records to impeach Gentry’s testimony regarding
White’s whereabouts. Through questioning, the government
suggested that Gentry, dialing from her home, paged White
at his pager number at 12:36 p.m. on January 9. By agree-
ment, a redacted copy of the phone records went into
evidence as Exhibit 27.
Another defense witness, Isaac Sawyer, confirmed Gen-
try’s recollection that he called White at the house that day.
According to Sawyer, he called multiple times and spoke
with White for approximately one minute “between 10:00
and 11:00.” Samantha Rice, a private investigator, also
testified for the defense. At the request of defense counsel,
she rode a bus from the bank to White’s home
and determined that the distance was approximately
fourteen miles. The prosecution impeached this testimony
on cross-examination by demonstrating that Rice took a
circuitous bus route.
When White proposed an alibi instruction based on the
testimony of the defense witnesses, the district court denied
it but agreed to provide the jury with a theory of defense
instruction. The jury received that instruction together with
multiple instructions clarifying the government’s burden of
proving beyond a reasonable doubt the elements of the
charged offenses.
The jury convicted White of both charges. The pre-
sentence report (PSR) recommended an obstruction of
justice enhancement and listed the amount of loss as
$11,590.00. White objected to the former, but not the latter.
On April 1, the district court sentenced White to consecutive
terms of sixty-four months on Count One and eighty-four
months on Count Two. The total sentence of 148 months
was predicated on a base offense level of 20, with a two-
level “financial institution” enhancement, a two-level
“obstruction of justice” enhancement, and a one-level
enhancement for amount of loss in excess of $10,000. White
appealed.
4 No. 05-2040
II. Discussion
White argues on appeal that the district court erred by:
(1) denying his request for an alibi instruction; (2) granting
continuances violative of his statutory and constitutional
speedy trial rights; (3) admitting into evidence phone
records that lacked foundation and had not been disclosed
to the defense; and (4) imposing two enhancements at
sentencing.
A. Alibi Jury Instruction
As to the denial of the tendered alibi jury instruction, we
review a district court’s decision regarding jury instructions
for an abuse of discretion. United States v. Chavis, 429 F.3d
662, 671 (7th Cir. 2005). A defendant is entitled to have the
jury consider any theory of defense, including an alibi
defense, “that is supported by law and that has some
foundation in the evidence.” United States v. Carter, 910
F.2d 1524, 1531 (7th Cir. 1990) (citing United States v.
Grimes, 413 F.2d 1376, 1378 (7th Cir. 1969)).
White proposed the following alibi instruction:
You have heard evidence that the defendant was not
present at the time and place where the offense charged
in the indictment is said to have been committed. The
government must prove beyond a reasonable doubt the
defendant’s presence at the time and place of the
offense.
The district court denied the request for an alibi instruction
and provided the following theory of defense instruction
instead: “The theory of the defense is that the defendant
was not present at the time and place where the offenses
charged in the indictment are alleged to have
been committed.”
An alibi is a “defense based on the physical impossibil-
ity of a defendant’s guilt by placing the defendant in a
No. 05-2040 5
location other than the scene of the crime at the relevant
time.” Black’s Law Dictionary 79 (8th ed. 2004). It is
undisputed that the robbery occurred at about 10:45 a.m. on
January 9; any alibi testimony would involve White’s
location at that time. Neither Gentry nor Sawyer provided
such testimony.
Gentry testified that White was with her at home be-
tween 11:30 a.m. and 12:00 p.m. This testimony not only
does not relate to the relevant time, but also was under-
mined by the cross-examination of Gentry, which estab-
lished that on January 15 Gentry told Agent Moore
that White did not come home until 12:45 p.m. on
January 9. Gentry’s testimony did not establish an alibi
for White’s location at 10:45 a.m.
Sawyer’s testimony was of little help. When asked
whether he called White at home that day, Sawyer re-
sponded that he spoke with him “between 10:00 and 11:00.”
He elaborated that his conversation with White was “very
short,” lasting only a minute. Gentry recalled their conver-
sation, but not the time it occurred. The defense was not
entitled to the alibi instruction and the district court did not
err in declining to give it.
White argues that the instructions as given did not
adequately guard against the possibility of jury misunder-
standing—i.e., that the jury would think that his failure to
prove an alibi amounted to evidence of guilt. In order to
receive a new trial based on erroneous instructions, a
defendant “must show both that the instructions did not
adequately state the law and that the error was prejudicial
to [him] because the jury was likely to be confused or
misled.” United States v. Smith, 415 F.3d 682, 688 (7th Cir.
2005) (quoting Boyd v. Ill. State Police, 384 F.3d 888, 894
(7th Cir. 2004)). In denying the alibi instruction, the district
court stated that he would “be happy to tailor an instruction
along the lines that [defense counsel] suggested, but it will
6 No. 05-2040
have to be cast as a theory of defense instruction,” and later
gave such an instruction.
Nor can he demonstrate that he was prejudiced by
possible jury confusion. In our prejudice analysis, “we
‘consider[ ] the instructions as a whole, along with all of the
evidence and arguments,’ to determine whether ‘the jury
was misinformed about the applicable law.’ ” Smith, 415
F.3d at 688 (quoting Boyd, 384 F.3d at 894). White argues
that the jury should have been instructed that his presence
at the scene was an element of the crime; it is self-evident
that presence is a necessary predicate for commission of the
charged acts. The jury was instructed repeatedly on the
government’s burden, first in general instructions on their
duties, and second in instructions on the charged offenses.
In the second part, the specific instruction read as follows:
“The government has the burden of proving each of the
essential elements of the crime charged in the indictment
beyond a reasonable doubt.” One element of Count One
required the government to prove “beyond a reasonable
doubt” that “the defendant took from the person or presence
of another, money belonging to or in the custody or posses-
sion of State Financial Bank.” It strains reason to argue, as
White does, that the jury could have found him guilty on
this charge without concluding that he was physically
present at the scene. The same is true for Count Two, which
required the government to prove “beyond a reasonable
doubt” that White “used or carried a firearm during and in
relation to” the crime alleged in Count One. Moreover, the
first part of the instructions notified the jury that White
was “not required to prove his innocence or to produce
any evidence,” thereby eliminating any possibility of
jury confusion about the burden of proof.
A district court does not commit reversible error when
it correctly instructs the jury on the presumption of inno-
cence, the government’s burden of proof, the elements of the
offense (including the defendant’s presence at the scene),
No. 05-2040 7
and the theory of defense. See Carter, 910 F.2d at 1531.
These instructions sufficiently informed the jury of all that
the government needed to prove. See United States v.
Manjarrez, 258 F.3d 618, 626 (7th Cir. 2001) (holding that
a defendant is not entitled to a specific instruction so long
as, “considering the instructions as a whole, the jury was
adequately instructed upon his theory of defense”). Because
the jury is presumed to follow the instructions that they
were given, we are confident that the instructions given
were not erroneous. Smith, 415 F.3d at 688-89.
B. Speedy Trial Rights
White next argues that the district court violated both his
statutory and constitutional speedy trial rights. The two
rights are related but distinct, so that a violation of one may
be found without a violation of the other. United States v.
Koller, 956 F.2d 1408, 1413 (7th Cir. 1992).
1. Speedy Trial Act
White contends that the district court abused its discre-
tion under the Speedy Trial Act by delaying his straightfor-
ward armed robbery case because of the novel legal issues
presented by Blakely v. Washington, 542 U.S. 296 (2004),
and United States v. Booker, 375 F.3d 508 (7th Cir. 2004).
A defendant must be brought to trial within seventy days of
the date of the indictment’s filing, or the date of the defen-
dant’s initial appearance before a judicial officer, whichever
is later. 18 U.S.C. § 3161(c)(1). Certain periods between the
triggering date and the commencement of trial are excluded
from the seventy-day limit. 18 U.S.C. § 3161(h). The
decision to grant a continuance, and the accompanying
decision to exclude the delay under the Act, is addressed to
the sound discretion of the district court. United States v.
Taylor, 196 F.3d 854, 860 (7th Cir. 1999). We will not
8 No. 05-2040
reverse its decision unless “there is an abuse of discretion
by the court and a showing of actual prejudice.” Id. (quoting
United States v. Martin, 7 F.3d 679, 683 (7th Cir. 1993)).
In this case, the government was required under
§ 3161(c)(1) to bring White to trial within seventy days
of the first indictment on May 18, 2004, because he first
appeared before a judge on April 14. See United States v.
Owokoniran, 840 F.2d 373, 374 (7th Cir. 1987) (holding that
the seventy-day limit “commences running with the indict-
ment” where the defendant’s initial appearance before a
judicial officer occurs before indictment). White’s trial
commenced on January 18, 2005. The defense concedes that
the periods from May 28 to June 17 and from July 9 to July
13 are excluded under § 3161(h)(1)(F). The government, in
turn, concedes that the periods from July 3 to July 9, July
14 to July 19, August 11 to August 17, and August 25 to
September 17 are non-excludable under the Act. The
government thereby admits that forty-three days ran under
the Act, but claims that the other periods of time challenged
by White—June 18 to July 2, July 20 to August 10, August
18 to August 24, and September 18 to January 18—are
excludable.
Although White contends that these periods are not
properly excludable under the Act, he never presented a
statutory speedy trial claim to the district court. The Act
expressly provides that defendants waive their rights under
the Act when they do not move to dismiss the indictment.
See 18 U.S.C. § 3162(a)(2) (“Failure of the defendant to
move for dismissal prior to trial . . . shall constitute waiver
of the right to dismissal under this section.”). Although a
defendant’s failure to move for dismissal has in the past
been viewed as forfeiting the argument but allowing for
plain error review, we have since recognized that the Act,
by its express terms, characterizes a defendant’s failure to
move for dismissal as “a waiver—not a forfeiture—of his
rights under the Act.” United States v. Morgan, 384 F.3d
No. 05-2040 9
439, 443 (7th Cir. 2004); contra United States v. Griffin, 194
F.3d 808, 824 (7th Cir. 1999) (reviewing for plain error
defendant’s statutory speedy trial claim raised for the first
time on appeal). Because White never moved to dismiss the
indictment in district court, he waived his rights under the
Act and we may not address his claim for the first time on
appeal.
2. Sixth Amendment
White also asserts that the district court violated his
constitutional right to a speedy trial. See U.S. Const.
amend. VI (“In all criminal prosecutions, the accused shall
enjoy the right to a speedy and public trial”). In considering
a defendant’s Sixth Amendment speedy trial challenge, we
apply the following four-part test: “whether delay before
trial was uncommonly long, whether the government or the
criminal defendant is more to blame for that delay,
whether, in due course, the defendant asserted his right to
a speedy trial, and whether he suffered prejudice as the
delay’s result.” Doggett v. United States, 505 U.S. 647, 651-
52 (1992). A review of these factors does not support White’s
claim of a Sixth Amendment violation.
The length of time from accusation to trial is a trigger-
ing mechanism: without a delay that is presumptively
prejudicial, we need not examine the other factors. Barker
v. Wingo, 407 U.S. 514, 530 (1972). The constitutional right
attaches only after an arrest, an indictment, or some other
form of official accusation. United States v. Souffront, 338
F.3d 809, 835 (7th Cir. 2003) (citing Doggett, 505 U.S. at
662). As a general matter, courts have found delays ap-
proaching one year to be presumptively prejudicial. United
States v. Ward, 211 F.3d 356, 361 (7th Cir. 2000) (citing
Doggett, 505 U.S. at 651). The length of delay necessary to
trigger a more thorough analysis, however, “is necessarily
dependent upon the peculiar circumstances of the case.”
10 No. 05-2040
Barker, 407 U.S. at 530-31. In this case, officers arrested
White on April 14, 2004, and the trial commenced on
January 18, 2005. The length of delay, approximately nine
months, is within the range that we have found long enough
to warrant a more searching analysis. See, e.g., United
States ex rel. Fitzgerald v. Jordan, 747 F.2d 1120, 1127 (7th
Cir. 1984) (finding that a pretrial delay of approximately
eight months was presumptively prejudicial); cf. Hogan v.
McBride, 74 F.3d 144, 145 (7th Cir. 1996) (finding that a
pretrial delay of approximately eight months in a robbery
case did not constitute presumptive prejudice). Deciding
that a delay is presumptively prejudicial requires us next to
“consider, as one factor among several, the extent to which
the delay stretches beyond the bare minimum needed to
trigger judicial examination of the claim.” Doggett, 505 U.S.
at 652. Because the delay in this case was barely long
enough to constitute presumptive prejudice, its length
beyond that point was not excessive.
The second factor, whether the delay was the fault of
the government or the defendant, is effectively neutral. The
cause of delay was the novel legal issue involving antici-
pated changes to federal sentencing laws under Blakely, 542
U.S. 296, for which neither party properly deserves blame.
The district court granted two 18 U.S.C. § 3161(h)(8)(B)(ii)
continuances, the first on July 20 and the second on
September 17. We consider the second continuance first.
When the judge on September 17 opted to “adopt” the
January 18 trial date suggested by the parties, defense
counsel stated, “I don’t have any quarrel.” Because White
thereby acceded to the second continuance, we need not
assign blame to the government for the delay it produced.
See United States v. Rothrock, 20 F.3d 709, 711 (7th Cir.
1994) (holding that defendant who joined in government’s
request for continuance under § 3161(h)(8)(A) cannot count
the time for speedy trial purposes).
No. 05-2040 11
Although White objected to the first continuance, granted
on July 20, the court based its ruling on the “considerable
angst in terms of what is required in terms of proof, both at
trial and sentencing” caused by Blakely and our subsequent
Booker decision. The two opinions, decided June 24 and
July 9, respectively, occurred within the few weeks before
the status hearing, caused the district court understandable
concern, and resulted in its prudent decision to “go slow and
allow these cases to work their way through.” Essentially,
then, the reason for the delay was neutral—the uncertain
application of Blakely to the U.S. Sentencing Guidelines. As
we have held, however, “a more neutral reason [for de-
lay] . . . should be weighted less heavily [than a deliberate
government delay,] but nevertheless should be considered
since the ultimate responsibility for such circumstances
must rest with the government rather than with the defen-
dant.” United States v. Jackson, 542 F.2d 403, 407 (7th Cir.
1976). Nonetheless, we have in the past found no violation
of the constitutional speedy trial right where “the bulk of
the delay was caused by” a “difficult legal issue” that
complicated the defendant’s sentencing. See Rothrock, 20
F.3d at 712.
As for the third factor, White asserted his right at the
July 20 pretrial conference by objecting to the first continu-
ance. Because this assertion occurred after three months of
the delay had occurred, this factor does not weigh strongly
in his favor. See Ward, 211 F.3d at 361. We examine the
fourth factor, prejudice, in light of the interests protected by
the right: “(i) to prevent oppressive pretrial incarceration;
(ii) to minimize anxiety and concern of the accused; and (iii)
to limit the possibility that defense will be impaired.”
Rothrock, 20 F.3d at 712 (quoting Barker, 407 U.S. at 532).
White claims prejudice based on his nine-month incarcera-
tion, but does not claim that the delay impaired his ability
to present a defense. Significant pretrial incarceration may
support a presumption of prejudice, but this prejudice
12 No. 05-2040
“unenhanced by tangible impairment of the defense func-
tion and unsupported by a better showing on the other
factors than was made here, does not alone make out a
deprivation of the right to [a] speedy trial.” Jackson, 542
F.2d at 409 (quoting United States v. DeTienne, 468 F.2d
151, 158 (7th Cir. 1972)); see also Koller, 956 F.2d at 1414.
In short, then, the period of delay was not extreme, the
reason for the delay was a novel legal question, White
asserted the right three months after arrest, and he
suffered no demonstrable prejudice aside from incarcera-
tion. Weighing the four factors, we find that his Sixth
Amendment right to a speedy trial was not violated.
C. Evidentiary Ruling
This Court will reverse a district court’s evidentiary
ruling only upon a showing that the district court commit-
ted an abuse of discretion. United States v. Briscoe, 896
F.2d 1476, 1490 (7th Cir. 1990). White therefore faces a
heavy burden, for “a reviewing court gives special deference
to the evidentiary rulings of the trial court.” Id. (quoting
United States v. Shukitis, 877 F.2d 1322, 1327 (7th Cir.
1989)).
According to White, the district court erred in admitting
purported Ameritech phone records into evidence be-
cause the prosecution, first, failed to disclose them under
Fed. R. Crim. P. 16(a)(1)(E), and, second, did not establish
a proper foundation under Fed. R. Evid. 803(6), the busi-
ness record exception to the hearsay rule. During cross-
examination, attorneys are permitted to address “matters
affecting the credibility of the witness.” Fed. R. Evid. 611(b).
During its cross-examination of Gentry, the prosecution
attempted to impeach her testimony that White arrived at
her home sometime between 11:30 a.m. and 12:00 p.m. on
January 9. The prosecution confronted Gentry with phone
records showing that she had paged White from her home
No. 05-2040 13
phone at 12:36 p.m. that day, well after she testified that he
had already arrived home. The prosecution’s use of the
records constituted a proper impeachment technique, meant
“to suggest that the witness may be mistaken or inconsis-
tent in his testimony and therefore is not a credible wit-
ness.” United States v. Phillips, 914 F.2d 835, 839 (7th Cir.
1990).
Although White argues that it was error to admit the
records into evidence, he waived this argument by agreeing
to the admission into evidence of Exhibit 27, a redacted
copy of them. Waiver occurs when a defendant intentionally
relinquishes a known right. United States v. Murry, 395
F.3d 712, 717 (7th Cir. 2005). During Gentry’s cross-
examination, defense counsel initially raised objections
regarding the phone records, thus indicating his knowl-
edge of the right. His later decision to allow Exhibit 27
into evidence without objection, however, served as a
repudiation of that right. See United States v. Redditt, 381
F.3d 597, 602 (7th Cir. 2004). Because defense counsel
intentionally decided not to object to Exhibit 27’s admission,
White has waived any challenge on appeal. See id.D. Sentencing
White’s conviction was classified at a base offense level of
20 under U.S.S.G. § 2B3.1(a). The district court then
imposed a two-level enhancement under U.S.S.G.
§ 2B3.1(b)(1) because the property of a financial institu-
tion was the object of the offense. White does not contest
either of these findings, but attributes error to the dis-
trict court for: (1) imposing a one-level enhancement
under U.S.S.G. § 2B3.1(b)(7)(B) because the bank’s loss
exceeded $10,000; and (2) imposing a two-level enhance-
ment under U.S.S.G. § 3C1.2 because White fled from the
scene.
14 No. 05-2040
He first argues that, because the jury did not deter-
mine the factual issues involved, the two enhancements vio-
lated the Sixth Amendment. Because White did not raise
this constitutional issue at sentencing, we review for plain
error. United States v. Mykytiuk, 415 F.3d 606, 607 (7th Cir.
2005). In United States v. Booker, the Supreme Court held
that a Sixth Amendment problem arises where the sentence
exceeds the statutory maximum for the charged crime or is
imposed under a mandatory sentencing scheme, not that
district courts may not conduct judicial fact-finding. 543
U.S. 220, 233-34 (2005). To the contrary, “Booker resolved
the problem by making the guidelines advisory; judicial
fact-finding in sentencing is acceptable because the guide-
lines are now nonbinding.” United States v. Robinson, 435
F.3d 699, 701-02 (7th Cir. 2006). Because White’s sentenc-
ing occurred on April 1, 2005, after Booker, the court
treated the Guidelines as advisory and White’s sentence is
not constitutionally infirm.
Still, we review the district court’s factual findings for
clear error. United States v. Arnaout, 432 F.3d 994, 998 (7th
Cir. 2005). Under this deferential standard of review, we
will not overturn its findings unless we are firmly convinced
that a mistake was made. United States v. Bryant, 420 F.3d
652, 656-57 (7th Cir. 2005). Upon review of the record, we
cannot say that the district court’s two findings here were
clearly erroneous. Regarding the obstruction enhancement,
it is true that White objected in response to the PSR. In
ruling on the enhancement, though, the court considered
and relied upon the trial testimony of both Page, the driver,
and the officers who pursued him. The witnesses testified
consistently regarding the high-speed chase, which “is
clearly the sort of reckless behavior covered by § 3C1.2.”
United States v. Giacometti, 28 F.3d 698, 701 (7th Cir.
1994). Because the record amply supported the district
court’s finding, we find no error in its determination.
No. 05-2040 15
As for the amount of loss, the PSR indicated that State
Financial Bank lost $11,590.00. Although White raised
two objections in the addendum to the PSR, neither com-
plained of this amount. He again failed to object at
the sentencing hearing, but now argues that the district
court erred because no one testified to that amount at trial.
The only trial testimony indicated that officers recovered
the $8,826 left in the grocery bag. The district court is
entitled, however, to rely upon information detailed in the
PSR. See Bryant, 420 F.3d at 657. Additionally, testimony
established that the robber dropped money when leaving
the bank and abandoned the bag after fleeing. It is reason-
able to infer that the difference in amounts resulted from
White dropping money, or taking what he could carry before
abandoning the bag, or both. White offered no evidence at
the hearing to dispute the amount of loss, even though he
had the opportunity to do so. Because the PSR ostensibly
reflected the amount reported lost by the bank, an amount
that White never objected to prior to appeal, it was not clear
error for the district court to find that the amount of loss
exceeded $10,000.
III. Conclusion
For the foregoing reasons, we AFFIRM the judgment of the
district court.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—4-5-06