United States v. Ross, Charles ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 05-2433 & 05-2703
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CHARLES ROSS and DEREK WILSON,
Defendants-Appellants.
____________
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 03 CR 822—Amy J. St. Eve, Judge.
____________
ARGUED FEBRUARY 9, 2007—DECIDED DECEMBER 14, 2007
____________
Before BAUER, FLAUM, and WILLIAMS, Circuit Judges.
WILLIAMS, Circuit Judge. A jury convicted Charles
Ross and Derek Wilson of robbing a postal truck docked
at the Grand Crossing Post Office Annex in Chicago,
Illinois (“Post Office”). Wilson had conspired to rob the
Post Office on two earlier occasions, and he finally decided
to put his words into action. Wilson, a postal employee,
used his inside knowledge of the Post Office to facilitate
the robbery and acted as getaway driver. Ross was the
gunman during the robbery, and five months after the
robbery, he was still in possession of small-caliber bullets.
Ross also confessed his role in the offense to postal inspec-
tors.
2 Nos. 05-2433 & 05-2703
On appeal, Ross argues that his confession should have
been suppressed as it was the product of coercion, that
he was prejudiced by the joinder of his felon-in-possession
of ammunition charge with counts related to the robbery,
and contends that he should not have been tried with
Wilson. We reject each of Ross’s arguments, finding that
his confession was voluntary and that he was not preju-
diced by the joinder of the counts or of Wilson. Finally,
Ross interjects a new argument on appeal: that events
before trial should have prompted the court to request
an evaluation of his competence. However, the district
court had no reason to doubt Ross’s capacity to consult
with his attorney or to understand the charges against
him.
Wilson’s only claim on appeal is that the district court
should not have admitted evidence of earlier conspiracies
to rob the Post Office. Because the evidence was admissi-
ble under Federal Rule of Evidence 404(b), we affirm the
judgment of the district court.
I. BACKGROUND
On August 8, 2003, while two employees loaded the Post
Office’s daily remittances onto a postal truck, two men
slipped into the space between the dock and the truck.
As one man pointed a gun at the employee aboard the
truck, the second employee fled. While the gunman kept
his gun trained on the remaining employee, the other man
boarded the truck and removed two bags of cash and
checks from a sealed cage. The pair then joined their
awaiting getaway car driver, making off with over $18,000
in cash and checks.
Fingerprints found at the scene matched those of
Richard Johnston, and the driver of the postal truck
identified Johnston in a physical line-up. After being
Nos. 05-2433 & 05-2703 3
indicted for the robbery, Johnston admitted his role,
identified the gunman as “Chuck,” and described the
apartment complex where “Chuck” lived. During the next
four months, postal inspectors learned that “Chuck” was
Charles Ross and obtained a warrant to search Ross’s
home.
Seven armed postal inspectors entered Ross’s home
early in the morning on January 12, 2004, to execute the
search warrant. After knocking and announcing their
presence, inspectors forced open Ross’s door to find Ross,
dressed in a tank top and boxer shorts, standing in his
unlit apartment. As several inspectors secured Ross’s
residence, Postal Inspector John Donnelly pointed his
MP5 submachine gun at Ross and told him to leave the
apartment and lie face down in the hallway. Donnelly
continued to point the submachine gun at Ross as he lay
on the ground. After the apartment was secured, inspec-
tors handcuffed Ross, helped him to his feet, and checked
him for weapons. Relieved of the responsibility of guard-
ing Ross, Donnelly entered the apartment and began
searching Ross’s bedroom. Inspectors Joselito Rocamora
and Sylvia Carrier then escorted Ross into his living
room, removed his handcuffs, gave him his Miranda
warnings, allowed him to put on a pair of pants, and began
questioning him about the robbery.
Although Ross initially denied involvement in the
robbery, after ten to fifteen minutes of questioning, he
confessed to committing the robbery with men named
Ricky and Derek. Specifically, Ross admitted that he
and his confederates had robbed two postal employees
at the Grand Crossing Post Office of approximately
$15,000 and that he had pointed an unloaded gun at
the employees. Ross said he had since discarded the gun,
and, when asked about fourteen .25-caliber and seventeen
.22-caliber bullets discovered in the search of his bed-
room, Ross claimed to have found them in a dumpster. At
4 Nos. 05-2433 & 05-2703
some point during the five-hour interview, Ross asked to
speak with someone about receiving a reduced sentence
for cooperation. In response, inspectors permitted Ross
to speak by phone with an Assistant United States Attor-
ney and Ross agreed to cooperate in the inspectors’
investigation.
The following day, while wearing a wire, Ross went to
the Post Office to speak with Derek Wilson, Johnston’s
cousin and a Post Office employee, about the robbery.
Ross told Wilson that police had been to his home asking
about “Ricky,” and that he was nervous and wanted to
know why police had come to suspect him. Ross asked
Wilson what had become of the post office bags, and
Wilson responded that the bags had “disappeared” and
could not have caused the police’s suspicion. Wilson
reassured Ross that he knew nothing, had heard nothing,
and had not spoken to a soul. After suggesting that Ross
speak to a mutual friend about the matter, Wilson ended
the conversation because he thought it unwise to speak on
post office grounds. Some time later, Wilson was arrested.
On December 14, 2004, the government returned a
second superseding indictment against Ross and Wilson
(having already pled guilty, Johnston was not named
in the indictment). In Count One, Ross and Wilson were
charged with conspiracy to commit an offense against
the United States in violation of 18 U.S.C. § 371. Count
Two charged them with robbing persons having custody
of United States property under 18 U.S.C. § 2114(a). In
Counts Three and Four, Ross was charged with know-
ingly possessing a firearm in furtherance of a crime of
violence, in violation of 18 U.S.C. § 924(c)(1)(A), and
unlawful possession of ammunition by a convicted felon,
a violation of 18 U.S.C. § 922(g)(1).
Before trial, Ross moved to suppress his confession as
being coerced. After holding a suppression hearing at
Nos. 05-2433 & 05-2703 5
which Ross, his son, his neighbor, and Inspectors Donnelly
and Rocamora testified, the district court denied the
motion to suppress, finding that Ross’s account of coercion
was not credible. Ross also moved to sever the felon-in-
possession of ammunition count (Count Four) from the
remaining counts of the indictment and to sever his case
from Wilson’s. These motions were also denied.
The government submitted a motion in limine request-
ing permission to introduce testimony regarding Wilson
and Johnston’s conspiracies to rob the Post Office in 1997
and 1998. The government argued that the prior conspira-
cies were intricately related to the charged offense and
also admissible under Federal Rule of Evidence 404(b). The
district court accepted both theories of admissibility
and granted the motion.
Ross and Wilson were tried together, and Johnston was
the key witness against both. Johnston testified that
when he was unemployed in 1997, he asked Wilson’s
advice on making money. Wilson told him that the Post
Office where he worked shipped large sums of money on a
daily basis, that Friday was the best day to rob the Post
Office, and that Johnston would need scissors to break
into a cage where the money was stored. With Wilson
acting as his getaway driver, in June 1997, Johnston stole
more than $9,000 from the Post Office. The two tried again
in May 1998, but were unsuccessful. On this occasion,
Johnston had to board a postal truck and confront its
driver to recover the money. Before Johnston could flee
with the cash, the truck driver sprayed him with mace,
and Johnston fled.
When Johnston expressed interest in robbing the Post
Office in 2003, Wilson again offered inside information.
Friday was still the best day to strike; the day’s receipts
were now stored in an annex across from the Post Office’s
main building; and two postal employees now transferred
6 Nos. 05-2433 & 05-2703
the money to the postal truck. Since he would have to
confront two employees in carrying out this robbery,
Johnston decided to recruit a friend to assist. He asked
Charles Ross, a recent acquaintance, to take part in the
robbery and to be his getaway driver, and Ross agreed.
Ross added that he would bring a gun. Because Ross’s car
was getting repaired on August 8, 2003, Wilson agreed to
again act as the driver at Johnston’s request. Johnston
testified that he and Ross confronted two postal em-
ployees, that Ross pointed his gun at both gentlemen, and
that Johnston cut the seal of a cage containing the bags
of money and removed two mail bags. Johnston, Ross
and Wilson then drove back to Ross’s apartment where
they split the money three ways. Johnston was arrested
a few weeks later.
In addition, Inspector Rocamora testified about Ross’s
confession on the morning of the search. An agent with the
Bureau of Alcohol, Tobacco, Firearms and Explosives
testified that the ammunition found in Ross’s apartment
had traveled in interstate commerce. The government
introduced Wilson’s post office personnel files and tele-
phone and bank records. Ross stipulated to having a
prior felony conviction and did not put on any evidence.
Wilson called five witnesses to testify as to his where-
abouts at the time of the robbery and his character.
The jury convicted Ross and Wilson on their respective
counts, and both defendants moved for a judgment of
acquittal or a new trial. Their requests were denied, and
the district court sentenced Ross to 108 months’ incarcera-
tion on Counts One, Two, and Four, and a consecutive
eighty-four month sentence on Count Three. Wilson
received one-hundred month concurrent sentences on
his two counts. Both defendants now appeal.
Nos. 05-2433 & 05-2703 7
II. ANALYSIS
A. The Admission of Ross’s Confession Was Proper
Ross argues that his confession was coerced and should
have been suppressed. In reviewing a district court’s
decision on a motion to suppress, we review factual
findings for clear error and legal conclusions de novo.
United States v. Burks, 490 F.3d 563, 565 (7th Cir. 2007).
At the outset, Ross attacks the court’s factual findings,
arguing that the court clearly erred in crediting the
postal inspectors’ accounts. This is an uphill climb,
because we give special deference to the district court,
who heard testimony and observed witnesses, on factual
matters. See United States v. Johnson, 383 F.3d 538, 542
(7th Cir. 2004). We will reverse only if “we are left with
the definite and firm conviction that a mistake has been
made”, as when a court has credited “exceedingly improba-
ble” testimony. Burks, 490 F.3d at 565. We begin by
reviewing the testimony.
Inspector Donnelly was the first to testify at the sup-
pression hearing. He testified that he performed two
functions during the search of Ross’s home. He carried an
MP5 submachine gun and, once the apartment was
secured, assisted in the search. According to Donnelly,
approximately seven armed officers proceeded to Ross’s
door at about 6:20 a.m. on January 12, 2004. After knock-
ing and announcing that they had a warrant to search
Ross’s home, the inspectors used a sledgehammer to
gain entry into Ross’s home. The door swung open reveal-
ing Ross standing inside the dark apartment in boxer
shorts and a tank top. Donnelly said he then pointed the
submachine gun at Ross and instructed him to exit the
apartment and lie down on the hallway floor. Donnelly
denied slamming Ross against the wall or even touching
Ross during this encounter. After Ross complied with
Donnelly’s instructions, the other inspectors rushed into
8 Nos. 05-2433 & 05-2703
the apartment to verify that no one else was inside.
Donnelly says that during that brief interval he stayed
outside with his gun pointed at Ross and always kept
a distance of five feet from the suspect. Once the inspec-
tors “cleared” the apartment, an inspector handcuffed
Ross and performed a pat-down. Inspectors Rocamora
and Carrier then escorted Ross to the living room and
Donnelly proceeded to the bedroom to assist in the search.
Inspectors found fourteen .25-caliber bullets and seven-
teen .22-caliber bullets in Ross’s bedroom. Donnelly
remembered seeing Ross again when he tossed a pair of
Ross’s pants out of the bedroom for Ross to wear. He
thought that was “probably” the only other time he saw
Ross in the apartment.
Inspector Rocamora, the supervising agent during the
search, also testified at the hearing. Although Rocamora
was excluded from the courtroom while Donnelly testified,
the inspectors’ testimony interlocked to a substantial
degree. Rocamora testified that inspectors announced
themselves at Ross’s home at 6:25 or 6:30 a.m. After
Ross exited the home, Rocamora said the apartment was
checked for confederates and Ross was allowed back into
the home. Rocamora stated that he removed Ross’s hand-
cuffs and read Ross his Miranda warnings before begin-
ning the interview. Consistent with Donnelly’s testimony,
Rocamora testified that Ross was allowed to get dressed
before the interview and that one of the inspectors
showed Ross the search warrant. Rocamora recalled that
Ross’s interview began twenty-five to thirty minutes
after entry into the apartment. According to Rocamora,
Ross initially denied any involvement in the robbery,
but within ten to fifteen minutes, he admitted to com-
mitting robbery with individuals named Ricky and Derek.
Rocamora testified that no one placed a gun to Ross’s head
during the interview or even yelled or swore at him.
Rocamora said Ross was given cigarettes, coffee, and chips
Nos. 05-2433 & 05-2703 9
during the five-hour interview. At the close of the inter-
view, Ross agreed to cooperate in the apprehension of the
third conspirator by wearing a wire.
Ross told a very different story. According to Ross, the
inspectors knocked at his door between 4:30 and 5:00 a.m.,
outside the time authorized in the warrant. He testified
that one inspector snatched him out of the apartment,
slammed him against the wall, and told him to get down
on his knees and to shut up. At that point, an officer put
a “rifle” to the back of his head. Ross said he repeatedly
asked to see a search warrant, that the officers never
showed him a warrant, and that the officers said “F it. We
don’t need it. Search it, anyway.” Ross then said the
inspectors asked him to sign a form giving consent to
search and that he refused. As for the interview, Ross
said he initially denied any involvement in the robbery,
and only confessed when Inspector Donnelly came rush-
ing from the bedroom saying “You’re gonna stop—you’re
gonna stop—F’ing lying,” and placed a gun to his head.
Ross testified that Rocamora became upset with Donnelly
and excluded him from the apartment. Even so, Ross
said, he was so nervous that he confessed and later agreed
to wear the wire only because he had already crossed
the line into assisting the inspectors. The defendant
called his son and a neighbor to testify at the suppression
hearing. Both testified that the inspectors began the
search before 5:00 a.m., but did not otherwise corroborate
the defendant’s account of events.
Ross says several purported discrepancies in the inspec-
tors’ testimony should have led the court to credit his
testimony. For one, he notes that Donnelly testified that
the inspectors began “conversing” with Ross ten minutes
after breaking down Ross’s door, but Rocamora testified
the interview began twenty-five to thirty minutes after
entry. This does not amount to a clear inconsistency
because the inspectors may have conversed with Ross
10 Nos. 05-2433 & 05-2703
before commencing a formal interview. To the extent there
is an inconsistency, it can be attributed to the excite-
ment of the circumstances and memory loss. And impor-
tantly, both inspectors agree as to what occurred during
the moments leading up to the interview, even if they
disagree on the precise timing of those events. Any dis-
crepancy regarding the timing of the interview is minor
and does not render the inspectors’ testimony exceedingly
improbable. See United States v. Jensen, 169 F.3d 1044,
1047 (7th Cir. 1999) (disagreement between two officers
as to when a conversation occurred did not make their
testimony exceedingly improbable); United States v.
Yusuff, 96 F.3d 982, 986 (7th Cir. 1996) (“[M]inor incon-
sistencies in the police testimony do not undermine
their credibility in any significant fashion.”).
Ross exaggerates other alleged inconsistencies. For
instance, he says Donnelly claimed that he did not remem-
ber who placed the handcuffs on Ross and that he did not
recall seeing Ross anytime after tossing a pair of pants
into the living room. Ross says these statements are
exceedingly improbable because: (1) Donnelly was guard-
ing Ross at close range at the time Ross was handcuffed,
and (2) Donnelly had to have passed Ross to exit the
apartment upon completion of the bedroom search. Ross’s
arguments are unconvincing because he misrepresents
Donnelly’s testimony. Donnelly testified that he was
almost certain that Postal Inspector Zielke placed the
handcuffs on Ross, and Donnelly testified that Ross “might
have been” in the living room when Donnelly left the
apartment.
Finally, Ross claims it is equally incredible that Donnelly
never touched him and remained five feet away from
him during the excited, fast-paced entry. But nothing
about Donnelly’s account is inherently unbelievable.
Rather, it is Ross’s version that strains imagination.
During the course of four meetings with prosecutors
Nos. 05-2433 & 05-2703 11
before trial, Ross never mentioned being threatened at
gunpoint or coerced into confessing. We also think it
unlikely that Ross was threatened into confessing on one
day and contentedly cooperated with police on the next.
The district court did not clearly err in accepting the
inspectors’ version of events.
So Ross is left to argue that the conditions of his inter-
view, as recounted by Inspectors Donnelly and Rocamora,
were coercive. He contends that the totality of the
circumstances—the fact that there were six to seven
armed postal inspectors in his apartment at the time of
his confession and that he was “greeted” with a subma-
chine gun minutes before the questioning began—renders
his confession involuntary. We review the district court’s
conclusion on this question de novo. Burks, 490 F.3d at
565. “A confession is voluntary if, in the totality of
the circumstances, it is the product of a rational intellect
and free will and not the result of physical abuse, psycho-
logical intimidation, or deceptive interrogation tactics
that have overcome the defendant’s free will.” United
States v. Huerta, 239 F.3d 865, 871 (7th Cir. 2001) (inter-
nal quotation marks and citations omitted). Among the
factors relevant in determining whether a confession
was coerced are: the defendant’s age, intelligence, educa-
tion, mental state; whether he was given his Miranda
rights; the duration and environment of the interroga-
tion, including the suspect’s access to the restroom and
food during the interrogation; and the conduct of law
enforcement. Conner v. McBride, 375 F.3d 643, 651 (7th
Cir. 2004).
Based on the totality of the circumstances, we find that
Ross’s confession was voluntary. Ross was over fifty
years old at the time of his interrogation and had signifi-
cant experience with the criminal justice system because
of his prior convictions. Although several armed inspectors
were moving around his apartment at the time of his
12 Nos. 05-2433 & 05-2703
confession, only two inspectors interviewed him at any
given time, and he was given his Miranda warn-
ings. Additionally, when Ross gave his confession, he
was sitting in his own apartment, fully clothed, and not
handcuffed, and he had been provided food and drink. The
entire interview lasted five hours but Ross’s confession
came within ten to fifteen minutes after inspectors initi-
ated questioning; so he cannot argue he was worn down
before he confessed. This is not a circumstance where a
defendant contends his will was so overborne that he
confessed to a crime he did not commit. Indeed, at the
suppression hearing, Ross admitted his guilt. Except for
Ross’s contention that Donnelly held a gun to his head,
which the district court found unbelievable, there is no
evidence of intimidation. The district court did not err
in admitting Ross’s confession.
B. Ross Was Not Prejudiced By the Joinder of All
Counts
Ross contends that the felon-in-possession count (Count
Four) should not have been tried with the other counts
of the indictment. He argues that the joinder of counts
was improper under Rule 8(a) of the Federal Rules of
Criminal Procedure, and that, even if joinder was proper,
the court should have granted his Rule 14 motion to
sever to ensure a fair trial. On appeal, we review a claim
of misjoinder de novo,1 and the denial of a motion to
1
A defendant need not renew a Rule 8 motion at the close of the
evidence to preserve the argument for appeal. See United States
v. Terry, 911 F.2d 272, 277 (9th Cir. 1990). “Because the propri-
ety of a Rule 8 joinder is determined solely by the initial allega-
tions of the indictment, there is no need to assess what actually
(continued...)
Nos. 05-2433 & 05-2703 13
sever for an abuse of discretion. See United States v.
Warner, 498 F.3d 666, 699, 700 (7th Cir. 2007).
We begin with Ross’s argument that the counts were
misjoined under Rule 8(a). Rule 8(a) permits the joinder of
offenses that are: (1) of the same or similar character;
(2) based on the same act or transaction; or (3) connected
with or part of a common scheme or plan. Fed. R. Crim. P
8(a). The government contends the felon-in-possession
count is of the “same or similar character” as the armed
robbery and use of a firearm in a crime of violence
counts because all three are “firearms offenses.” We need
not resolve this question, or even whether Rule 8(a)
applies in this multi-defendant case,2 because Ross could
(...continued)
happened in the trial.” Id.2
We have previously said that “[w]hen two or more defendants
are charged in a single indictment, Rule 8(b) governs joinder of
defendants and offenses.” United States v. Cyprian, 23 F.3d 1189,
1193 (7th Cir. 1994); see United States v. Alvarez, 860 F.2d 801,
823 (7th Cir. 1988); United States v. Moya-Gomez, 860 F.2d 706,
766 (7th Cir. 1988); United States v. Velasquez, 772 F.2d 1348,
1353 (7th Cir. 1985); see also United States v. Carson, 455 F.3d
336, 374 n.34 (D.C. Cir. 2006); United States v. Irizarry, 341 F.3d
273, 287 (3d Cir. 2003); United States v. Jones, 880 F.2d 55, 60-61
(8th Cir. 1989); United States v. Turoff, 853 F.2d 1037, 1043 (2d
Cir. 1988); United States v. Levine, 546 F.2d 658, 661 (5th Cir.
1977); 24 Moore’s Federal Practice § 608.03[2] (3d ed. 2007); 4 W.
LaFave, J. Israel, & N. King, Criminal Procedure § 17.2(a)
(1999); cf. United States v. Lane, 474 U.S. 438, 444-446 (1986)
(evaluating claim that charges were misjoined in a multi-
defendant trial under Rule 8(b)). However, we have not always
applied that principle consistently, see United States v. Lanas,
324 F.3d 894, 899-900 (7th Cir. 2003) (analyzing joinder of
offenses against in a multi-defendant trial under Rule 8(a)), and
some courts have challenged the traditional view that in
(continued...)
14 Nos. 05-2433 & 05-2703
never show prejudice. See United States v. Lane, 474 U.S.
438, 449 (1986) (“[W]e hold that an error involving mis-
joinder ‘affects substantial rights’ and requires reversal
only if the misjoinder results in actual prejudice because
it ‘had substantial and injurious effect or influence in
determining the jury’s verdict.’ ”).
The evidence of Ross’s involvement in the robbery
was simply overwhelming, so we are confident that the
jury did not convict him on the robbery counts purely
because of his status as a felon. Inspector Rocamora
testified to Ross’s confession. The jury heard Ross impli-
cate himself during the tape recorded conversation with
Wilson. In that conversation, Ross referred to himself,
Wilson, and Johnston, acknowledging that the three
were acquainted. He also asked Wilson what had been
done with the post office bags, evidence of the robbery.
Ross told Wilson that police had come to his home, he was
scared, and wanted to know if Wilson had spoken to
someone about their activities. Ross also commented on
the fact that a lack of gloves had contributed to his prob-
lems (apparently referring to the fact that Johnston’s
fingerprints were found at the scene). In his efforts to
ensnare Wilson, Ross all but admitted his own guilt on
tape. Finally, the jury also heard Johnston testify in
detail to Ross’s involvement in the armed robbery. “In the
face of overwhelming evidence of guilt shown here, we are
satisfied that the claimed error was harmless.” Lane, 474
U.S. at 450.
(...continued)
multi-defendant cases, Rule 8(b) governs the joinder of offenses.
See United States v. Frost, 125 F.3d 346, 389 (6th Cir. 1997);
United States v. Southwest Bus Sales, Inc., 20 F.3d 1449, 1454
(8th Cir. 1994); United States v. Eufrasio, 935 F.2d 553, 570 n. 20
(3d Cir. 1991); see also 1A Charles Alan Wright, Fed. Practice
& Procedure § 144 (3d ed. 1999).
Nos. 05-2433 & 05-2703 15
Additionally, the court gave limiting instructions to
minimize any risk of prejudice. See United States v. Stokes,
211 F.3d 1039, 1043 (7th Cir. 2000); United States v.
Coleman, 22 F.3d 126, 135 (7th Cir. 1994). The jury was
told to consider Ross’s felon status only when resolving
the felon-in-possession count and to give each count
separate consideration, and we must presume the jury
followed such instructions. See United States v. Eberhart,
434 F.3d 935, 939 (7th Cir. 2006). Given the abundant
evidence of Ross’s guilt and the court’s limiting instruc-
tions, the joinder of all counts was not prejudicial.
Ross has waived his alternate argument that the
court erred in denying his motion to sever by failing to
renew the motion at the close of the evidence. See United
States v. Rollins, 301 F.3d 511, 518 (7th Cir. 2002); United
States v. Caudill, 915 F.2d 294, 298 (7th Cir. 1990); United
States v. Phillips, 239 F.3d 829, 838 (7th Cir. 2001); United
States v. Brown, 870 F.2d 1354, 1360 (7th Cir. 1989). Ross
argues that defendants should only be obligated to renew
motions to sever defendants, not motions to sever counts.
He says that since joinder of counts is judged on the face
of the indictment, see Lanas, 324 F.3d at 899, not on
evidence adduced at trial, a defendant should not have to
renew a motion to sever counts at the close of the evidence.
We are not convinced. Although the initial question of
joinder is assessed only on the indictment (and for this
reason, we do not require parties to renew Rule 8 motions),
a judge may consider trial evidence in ruling on a Rule 14
motion to sever. See Coleman, 22 F.3d at 134. For this
reason, we have held that a motion to sever counts, like a
motion to sever defendants, is waived if not renewed at the
close of the evidence and we will not revisit that holding
here. See Rollins, 301 F.3d at 518; United States v.
Berardi, 675 F.2d 894, 899 n.10 (7th Cir. 1982); United
States v. Pacente, 503 F.2d 543, 546 n.5 (7th Cir. 1974).
16 Nos. 05-2433 & 05-2703
C. Ross Was Not Prejudiced By Being Tried With
Wilson
Ross also contends that under Rule 8(b), he and Wilson
should not have been joined for trial and that the court
should have granted his Rule 14 motion for severance.
These joinder and severance claims suffer from the
same deficiencies as the others. There is overwhelming
evidence of Ross’s guilt so he cannot show prejudicial
joinder. And by failing to renew his motion to sever
defendants at the close of the evidence, he waived that
claim and foreclosed our review.
D. The District Court Did Not Err in Failing To
Request an Evaluation of Ross’s Competence
Finally, Ross argues that the district court erred in
failing to investigate his competence to stand trial. Only a
competent person, one who “has sufficient present ability
to consult with his lawyer with a reasonable degree of
rational understanding . . . and . . . a rational as well as
factual understanding of the proceedings against him,”
may be subjected to trial. Dusky v. United States, 362
U.S. 402, 402 (1960); see Woods v. McBride, 430 F.3d 813,
817 (7th Cir. 2005). For that reason, “[a] defendant is
entitled to a hearing on his competency if a bona fide
doubt arises about his ability to consult with his attorney
or his understanding of the charges brought against him.”
Woods, 430 F.3d at 817 (emphasis added). In fact, when-
ever circumstances call a defendant’s competence into
question, a court must initiate a sua sponte investigation
into his mental condition. Id. Where, as here, the district
court did not order a psychiatric examination or make a
judicial determination regarding the defendant’s compe-
tence, this court’s review is “comprehensive.” United States
v. Collins, 949 F.2d 921, 924 (7th Cir. 1991).
Nos. 05-2433 & 05-2703 17
Ross contends that his persistent complaints about the
copies of the search warrant provided to him, his con-
fused discussions regarding the warrant during status
hearings, and his inability to cooperate with three lawyers
created a bona fide doubt regarding his competence. Our
review of the record suggests otherwise. The record re-
flects that Ross was obsessed with seeing the original
search warrant; he complained that the copies of the
search warrant presented to him did not “look right” and
were unsigned or had illegible signatures; and he misun-
derstood the difference between a search warrant and an
arrest warrant. Ross’s concerns led to breakdowns in his
relationships with defense counsel and may have in-
formed his dismissal of two attorneys.
Even so, we do not think his complaints signaled a
competence problem. That a defendant should repeatedly
press losing arguments is neither unusual nor particularly
alarming. Aside from highlighting Ross’s stubborn insis-
tence that the inspectors lacked a search warrant, counsel
offers no basis to question Ross’s competence. For instance,
counsel does not identify a history of mental health
concerns, hospitalizations, or use of medications. See
Balfour v. Haws, 892 F.2d 556, 559-61 (7th Cir. 1989)
(affirming a district court’s finding that there was no bona
fide doubt as to the defendant’s competence although the
defendant was taking anti-psychotic medication at trial
and sentencing and had recently undergone inpatient and
outpatient psychiatric treatment). Further, it is quite
telling that not one of Ross’s three trial attorneys sug-
gested a competence problem; rather, they found him a
difficult, but not incompetent, client. Id. at 561. The
district court did not err in failing to request a psychiatric
examination of Ross.
18 Nos. 05-2433 & 05-2703
E. The Evidence of Wilson and Johnston’s Prior
Conspiracies to Rob the Post Office Was Properly
Admitted
Wilson contends that the district court abused its
discretion in allowing Johnston to testify regarding the
1997 and 1998 conspiracies to rob the Post Office. The
district court found that the evidence was intricately
related to the charged offense and admissible under
Federal Rule of Evidence 404(b). We review that decision
for an abuse of discretion, see United States v. Holt, 460
F.3d 934, 936 (7th Cir. 2006), and conclude that the
evidence was admissible under Rule 404(b).
Rule 404(b) prohibits the admission of evidence of other
wrongs or acts for the purpose of proving the defendant’s
character or that he acted in conformity with that charac-
ter on a given occasion. See United States v. Hurn, 496
F.3d 784, 787 (7th Cir. 2007). However, evidence of a prior
bad act may be admitted for other purposes, such as to
prove motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake. Fed. R. Evid.
404(b); see Hurn, 496 F.3d at 787. Evidence is properly
admitted under Rule 404(b) if:
(1) the evidence is directed toward establishing a
matter in issue other than the defendant’s propen-
sity to commit the crime charged; (2) the evidence
shows that the other act is similar enough and
close enough in time to be relevant to the matter in
issue; (3) the evidence is sufficient to support a
jury finding that the defendant committed the
similar act; and (4) the probative value of the
evidence is not substantially outweighed by the
danger of unfair prejudice.
United States v. Dennis, 497 F.3d 765, 768 (7th Cir. 2007)
(citation omitted).
Nos. 05-2433 & 05-2703 19
The testimony satisfies each of these elements. First, the
evidence was directed at establishing at least one matter
other than propensity, namely the defendant’s intent.
Because conspiracy is a specific intent crime, whether
Wilson intended to conspire to rob the post office was
automatically in issue. See United States v. Curtis, 280
F.3d 798, 802 (7th Cir. 2002); United States v. Smith, 995
F.2d 662, 672 (7th Cir. 1993); United States v. Monzon, 869
F.2d 338, 344 (7th Cir. 1989). Second, the prior conspira-
cies are also sufficiently similar to, and close in time with,
the charged offenses. All of the robberies targeted the
same post office, occurred on the same day of the week,
required the use of scissors, and involved two of the same
participants. Having occurred within five and six years of
the charged robbery, the prior bad acts are not too remote
in time. See United States v. Polichemi, 219 F.3d 698,
709 (7th Cir. 2000) (ten-year old bad acts evidence ad-
missible under Rule 404(b)); United States v. Kreiser, 15
F.3d 635, 640 (7th Cir. 1994) (seven-year old bad acts).
Additionally, the time gap is a bit misleading given that
Johnston could not have participated in robberies during
many of the intervening years as he was incarcerated.
Third, the testimony of Johnston, a co-conspirator, was
sufficient to support a jury finding that the defendant
committed the prior acts. See Curtis, 280 F.3d at 802.
Finally, although the evidence posed a risk of prejudice, its
probative value in helping to establish an essential
element of the conspiracy—intent—outweighed the risk
of prejudice. The evidence was properly admitted under
Rule 404(b); we need not consider whether it might also
have been admitted under the intricately related evid-
ence doctrine.3
3
Wilson initially contended that he was improperly sentenced
because the court imposed concurrent 100-month sentences on
(continued...)
20 Nos. 05-2433 & 05-2703
III. CONCLUSION
For the foregoing reasons, the judgment of the district
court is AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
(...continued)
both counts though Count One carried a statutory maximum of
five years. Because Wilson cannot show that the district court
committed plain error, he has rightly withdrawn this argument.
See United States v. Gray, 332 F.3d 491, 493 (7th Cir. 2003) (“no
reversal is warranted under the plain error standard when the
sentence imposed does not exceed the combined statutory
maximum achievable by running the sentences consecutively”).
USCA-02-C-0072—12-14-07