United States v. Price, Cornelius ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 06-3702 & 06-4248
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CORNELIUS PRICE and VINCENT HAMILTON,
Defendants-Appellants.
____________
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 04 CR 1074—David H. Coar, Judge.
____________
ARGUED NOVEMBER 2, 2007—DECIDED FEBRUARY 19, 2008
____________
Before MANION, ROVNER, and EVANS, Circuit Judges.
EVANS, Circuit Judge. In this consolidated appeal, we
review the convictions and sentences of two defendants,
Cornelius Price and Vincent Hamilton, who, in separate
jury trials, were found guilty of committing different
Chicago bank robberies (18 U.S.C. § 2113(a)). Both were
also convicted of carrying a firearm during their respec-
tive robberies (18 U.S.C. § 924(c)).
The district court judge (David H. Coar) sentenced Price
to a term of 110 months for the October 2, 2002 robbery
of First Security Federal Savings Bank, to be followed
by a 300-month term on the firearm count. Hamilton
2 Nos. 06-3702 & 06-4248
received a sentence of 151 months for the December 9,
2004, robbery of the North Community Bank, to be fol-
lowed by an 84-month term for carrying a firearm.
Price’s appeal points to several alleged errors by the
district court: (1) admitting, as modus operandi evid-
ence, facts relating to a March 11, 2003, robbery of
Bank Chicago (Price pled guilty to robbing this bank);
(2) excluding part of a statement Price gave to an FBI
agent following his arrest in connection with the March
2003 robbery; (3) admitting, as business records, evidence
about car purchases by Price and others right after the
October 2002 robbery; and (4) imposing a mandatory
minimum sentence under § 924(c)(1)(C) where Price’s
previous conviction under that section was neither
alleged in the indictment nor proven at trial.
Hamilton argues that the court: (1) failed to consider
18 U.S.C. § 3553(a) factors in sentencing him; (2) improp-
erly enhanced his sentence by two levels for obstruction
of justice under U.S.S.G. § 3C1.1; and (3) improperly
admitted evidence of an out-of-court conversation be-
tween Hamilton and a coconspirator.
Although this appeal concerns two robberies, each with
a separate defendant, the cast of characters in both
incidents (and a third robbery) are intertwined. So we
begin with the facts as they were developed at the two
trials, viewing the evidence, as we must at this time, in
the light most favorable to the government. Many of the
facts come from cooperating coconspirators, notably
Cleve “Hollywood” Jackson.
At 6:50 a.m. on Wednesday, October 2, 2002, Taras
Serafym, the assistant branch manager at the First
Security Federal Savings Bank on Western Avenue in
Chicago, arrived for work. At a gas station across the
street, Jackson waited in a car with a walkie-talkie,
watching the bank from a distance.
Nos. 06-3702 & 06-4248 3
As Serafym opened the bank’s exterior door, he was
confronted by two men—Cornelius Price and Eddie
Hill—wearing gloves, black stocking masks, and
sweatshirts with hoods pulled over their heads. Each
carried a gun and a walkie-talkie. Price pointed his gun
at Serafym’s head and forced him to open the interior
bank door. Once inside the bank, Price directed Serafym
into the vault room, where Serafym disabled the alarm.
The robbers instructed Serafym to open the safe and empty
its contents into a white laundry bag. He did as directed.
The robbers pushed Serafym toward the rear door and
instructed him to lie down. Using a walkie-talkie, Price
and Hill summoned their getaway driver, Eddie’s brother
Michael Hill.
The job complete, the four men (Price, Jackson, and the
Hills) sought refuge in the home of Eddie and Michael’s
mother. They gathered in the basement to divide up the
loot—the handsome sum of $151,379.
In the two days after the heist, with the cash apparently
burning a hole in their pockets, all four men purchased
rather pricey used cars. Eddie Hill bought a Jaguar,
Michael Hill bought a Lincoln Navigator, Jackson bought
a Lincoln Navigator in the name of his more credit-worthy
uncle (John V. Brown), and Price bought a Ford Expedi-
tion.
Five months later, a new target—Bank Chicago on
South Torrence Avenue—attracted the attention of Price,
who, this time around, went solo. At about 7:30 a.m. on
March 11, 2003, Price, wearing gloves and a ski mask,
confronted the teller unlocking the door to the bank.
Pointing his gun at the teller, Price assured her that he
didn’t want anyone to get hurt. He just wanted the
money—and quickly.
Price pushed the teller into the bank. She disarmed the
alarm and opened the safe. Price handed the teller a
4 Nos. 06-3702 & 06-4248
laundry bag, ordering her to fill it with money. The teller
emptied two drawers’ worth of cash into the bag. Price
then ordered her to the floor and tied her hands behind her
back with duct tape. He exited, bag in hand, through the
front door.
The police caught Price after a brief foot chase, during
which Price dropped his ski mask and the laundry bag.
The officers arrested Price and, while patting him down,
found a gun and car keys with an attached keyless entry
remote. With the remote, using the kind of police work
that would make McNulty and “The Bunk” of The Wire
proud, the officers walked around, continually pressing
the “unlock” button around cars parked in the vicinity of
the bank. Eventually, the remote found its mate: a 1997
black Ford Expedition, the one purchased by Price a day
after the October 2002 robbery. The police also re-
covered the take from the bank—$31,983.
Although Price eventually admitted that he owned the
Ford Expedition and that he had committed the robbery,
he maintained that this was his first and only heist.
About a week before the third robbery—which struck
Chicago’s North Community Bank on West Division on
December 9, 2004—Hamilton, Eddie Hill, Lavonas Troupe,
and Jackson attended a party. There, Hamilton, Troupe,
and Jackson listened to Hill describe a robbery he was
planning. Hill was confident that it would be easy: all
he had to do was to grab a female employee opening
the bank and push her through the unlocked door. As
Hill moved on to describe past robberies he had com-
mitted, Hamilton repeatedly nodded his head, suggesting
that he had helped Hill commit these crimes.
On December 9, 2004, at about 8 a.m., bank tellers
Stephanie Hill and Wayne Bates reported for work.
Standing at a bus stop across the street were Jackson and
Nos. 06-3702 & 06-4248 5
Troupe, each carrying a gun and a walkie-talkie with an
attached earpiece. As Ms. Hill approached the rear door
of the bank, where her coworker, Bates, was waiting,
Jackson and Troupe received word from Eddie Hill (the
lookout) via walkie-talkie transmission that it was time to
move. The two men—wearing hooded sweatshirts, latex
gloves, and pantyhose over their faces—ran across the
street toward Stephanie, who had begun to enter a code
on a keypad to unlock the door to the bank.
Jackson grabbed Stephanie, pressed a gun against her
back, and ordered her to open the door. Jackson and
Troupe pushed both tellers into the bank. Stephanie
directed the robbers toward the vault, which she opened
after deactivating an alarm. As Stephanie attempted to
access the safe within the vault, Jackson held a gun to
Bates’ head. Jackson instructed the tellers to hit the
ground, and Troupe stuffed the money from the
vault—$119,000—into a white canvas bag.
Jackson and Troupe left the bank through its rear door.
They ran across a parking lot and crawled through a hole
in a fence separating the lot from the alley. Hamilton
was there waiting in the getaway van. Hamilton gunned
it and drove off.
Tipped off by three witnesses who saw Jackson and
Troupe enter the bank and, minutes later, escape into the
alley, the police were hot on the robbers’ trail. A high-
speed chase covering about 15 blocks ended suddenly
when Hamilton crashed the van into a pole. Hamilton,
Troupe, and Jackson jumped out of the van, running. The
robbers made little headway, however, since Hamilton
had driven into a parking lot enclosed by a tall chain-link
fence. All three were caught and arrested. A search of the
van produced a white canvas bag containing $119,990; a
loaded .380 caliber semi-automatic Beretta handgun; a
loaded .38 caliber revolver; latex gloves; black gloves; and
6 Nos. 06-3702 & 06-4248
three walkie-talkie radios, two of which had ear pieces.
The lookout, Eddie Hill, who was not in the getaway car,
was sucked into the case when Jackson’s sister (who
was also Troupe’s fiancée) cooperated with police and
recorded a conversation with him wherein he admitted
his involvement in the robbery.
Price first argues that the district court should not
have admitted evidence of his involvement in the
March 2003 bank robbery since any similarities between
it and the October 2002 heist for which he was on trial
were generic. We review a district court’s decision to
admit evidence under Rule 404(b) for an abuse of discre-
tion. United States v. Owens, 424 F.3d 649, 653 (7th Cir.
2005).
Whether or not evidence is admissible under Rule 404(b)
requires a balancing of interests. Here, in an argument
often made in cases of this sort, Price says the evid-
ence the government offered—his involvement in the
March 2003 robbery—was both remote and dissimilar to
the charged October 2002 robbery. He also claims that
the prejudicial effect of the evidence far outweighed its
probative value.
It is true, as Price argues, that some of the similarities
between the two robberies are very general. In both heists,
each robber wore a hooded sweatshirt, wore some kind
of a mask (a ski mask or pantyhose), carried a gun, and
collected the stolen money in a white cloth bag. Certainly,
a disguise, gun, and bag for the loot are relatively standard
bank robber “accessories.” See United States v. Seals, 419
F.3d 600, 607 (7th Cir. 2005).
The crimes, of course, are also somewhat different. Price
committed the March 2003 robbery alone and escaped on
foot. The October 2002 robbery, Price argues, was com-
plicated by comparison: four robbers with walkie-talkies
Nos. 06-3702 & 06-4248 7
and a lookout car escaped from a bank in a getaway
vehicle.
What the district judge found significant, though, as do
we, is the specific techniques used by the actual robbers
in both crimes. Each robbery was an early weekday
morning ambush of an employee opening a bank for
business. Likewise, in each, the robber(s) forced the bank
employee(s) at gunpoint to enter the bank, turn off the
alarm, access the vault, and hit the ground before the
robbers made their escapes. The banks were located only
5.4 miles apart. The crimes took place within five months
of each other.
In evaluating the probative value of modus operandi
evidence, we focus on the commonalities between the
charged crime and the other act—not on their differences.
United States v. Vaughn, 267 F.3d 653, 659 (7th Cir. 2001).
The parallels between the two crimes strongly suggest
that Price, who pled guilty to the March 2003 robbery,
likewise was involved in the October 2002 robbery.
We are also convinced that the district judge did not
abuse his discretion when he concluded that the probative
value of evidence of the March 2003 robbery was not sub-
stantially outweighed by the danger of unfair prejudice. As
the government notes, evidence of the March 2003 robbery
was presented in a relatively sterilized form. The facts
were presented dispassionately from a plea agreement—
not from live, dramatic testimony of the victim. Also, the
risk of unfair prejudice was slight, since, because the
similarities between the robberies were substantial, the
probative value of the March 2003 evidence is significant.
See United States v. Anifowoshe, 307 F.3d 643, 647-48
(7th Cir. 2002).
Price next argues that under the rule of completeness,
the district judge should have admitted a portion of his
8 Nos. 06-3702 & 06-4248
statement to the FBI where he said that it was the only
robbery he ever committed. According to Price, this
statement clarifies a statement he made in 2005 where he
said he would “cooperate” with the FBI by providing
details about the October 2002 robbery (including the
names of those involved).
We review the district court’s decision to admit evid-
ence on the basis of completeness for an abuse of discre-
tion. United States v. Glover, 101 F.3d 1183, 1190 (7th Cir.
1996).
We have held that, under the doctrine of completeness,
codified in Federal Rule of Evidence 106, a party against
whom a “fragmentary statement” is introduced may ask
the district court to admit other parts of the statement
necessary to “clarify or explain the portion already re-
ceived.” Glover, 101 F.3d at 1183, 1189.
By allowing litigants to present a broader picture of the
evidence, the completeness rule prevents the jury from
being misled by a statement introduced out of its true
context. Although Rule 106 applies only to written state-
ments, we apply the same analysis to oral statements
(such as Price’s statements to the FBI). See, e.g., United
States v. Li, 55 F.3d 325, 329 (7th Cir. 1995).
As the party seeking to admit the additional evidence,
Price must establish both that the evidence is relevant
to the issues in the case and that it clarifies or explains the
portion offered by the government. See Glover, 101 F.3d at
1190. To determine whether the evidence serves
a clarifying purpose, the district court must ask whether
the evidence: (1) explains the evidence already admitted;
(2) places the admitted evidence in its proper context;
(3) will serve to avoid misleading the trier of fact; and
(4) will insure a fair and impartial understanding of all
of the evidence. A judge need not admit every portion of
Nos. 06-3702 & 06-4248 9
a statement—just those needed to explain portions previ-
ously introduced. See Li, 55 F.3d at 329-30.
We agree with the district judge that Price’s March 2003
statement was not necessary to explain the admission he
made nearly two years later. Price’s March 11, 2003,
statement that that day’s heist was his first and only
robbery, although relevant to the question of whether
Price participated in the October 2002 robbery, is too
remote to clarify a statement Price made in January 2005.
A statement admitted on “completeness” grounds must
be connected contextually to the previously introduced
evidence, such that the exclusion of that statement is
likely to create an incomplete, misleading, or distorted
picture of the evidence. Price’s March 2003 statement does
not fit the bill. In January 2005, Price and the FBI agent
did not pick up where they left off in their March 2003
conversation; the context was not the same. Price’s Janu-
ary 2005 words did not directly modify or explain what
he said in March 2003. Because the March 2003 state-
ment does not in any way “complete” Price’s January 2005
admission, the district court properly excluded the
March 2003 statement.
In his next argument, Price contends that the district
court erred in admitting evidence of Eddie Hill’s purchase
of a Jaguar two days after the October 2, 2002, robbery.
Price argues that because American Car Exchange em-
ployees would, at a purchaser’s request, misrepresent
two significant pieces of information on a vehicle’s pur-
chase order, the purchase order was insufficiently trust-
worthy to be admissible as a business record under Federal
Rule of Evidence 803(6).
First, at the request of the buyer, the employee would
inaccurately designate on the purchase order someone
who had accompanied the buyer to the store as the “pur-
10 Nos. 06-3702 & 06-4248
chaser” of the vehicle. Second, the employee sometimes
underreported the vehicle’s purchase price and the pur-
chaser’s down payment.
We generally give great deference to the district court’s
decision to admit evidence as a business record. United
States v. Zapata, 871 F.2d 616, 625 (7th Cir. 1989). In
addition, we tend to overlook accidental errors or omis-
sions made by employees who generally seek to record
information accurately. See, e.g., United States v.
Keplinger, 776 F.2d 678 (7th Cir. 1985). Here, however,
American Car Exchange’s purchase orders, which em-
ployees frequently and deliberately crammed with inac-
curate information at the request of the purchaser, are
in a league of their own. Although employees were able
to confirm the identity of the car purchaser or his compan-
ion by requesting a driver’s license or some other identifi-
cation, see, e.g., Zapata, 871 F.2d 616, the fact that
some grain of truth can be extracted from a record pre-
pared under general circumstances of untrustworthiness
cannot elevate the record to a “business record” status.
Although the district court erred in admitting the
purchase order as a business record, this error was
harmless. The jury was presented with substantially
similar evidence of car purchases by the remaining partici-
pants in the October 2, 2002, robbery: Michael Hill,
Jackson, and Price himself.
Next, Price argues that the district court improperly
sentenced him to a 25-year mandatory minimum sen-
tence under § 924(c)(1)(C) because Price’s previous con-
viction under that section was neither alleged in the
indictment nor proven at trial. This argument, too, has
no merit.
The Supreme Court has held that a judge may find
facts that trigger a mandatory minimum sentence; these
Nos. 06-3702 & 06-4248 11
facts need not be charged in the indictment or proven to a
jury beyond a reasonable doubt. Harris v. United States,
536 U.S. 545, 560, 122 S. Ct. 2406, 2415 (2002). As a
result, the district court could properly conclude that
Price had been previously convicted under § 924(c)(1) and
therefore deserved a 25-year mandatory minimum sen-
tence under that section.1
Hamilton first argues that the district court, in sen-
tencing him, failed to consider the § 3553(a) factors. We
use a nondeferential standard of review when determin-
ing whether the district court followed proper post-Booker
sentencing procedures. United States v. Rodriguez-Alvarez,
425 F.3d 1041, 1046 (7th Cir. 2005).
The district judge’s obligation is not to apply all
§ 3553(a) factors mechanically or in a “checklist fashion”
but to calculate the guideline range accurately and to
explain why, consistent with § 3553(a), the sentence is
appropriate. United States v. Dean, 414 F.3d 725, 729 (7th
Cir. 2005). Judge Coar did just that here.
The judge gave ample opportunity to both sides to
present their arguments. Hamilton requested a below-
range sentence on the ground that, before he was ar-
rested for the robbery, he had kept a steady job for a
number of years. He also wanted to return home as soon
as possible to provide for his wife and children, who
were struggling financially and emotionally in his absence.
After giving the government an opportunity to respond,
Judge Coar responded to the issues Hamilton raised
1
Price also suggests that his sentence should be vacated be-
cause the government mistakenly informed him at the arraign-
ment that he faced a mandatory minimum sentence of 5 years.
Because Price cites no case law in support of this argument,
however, we need not address it. See, e.g., United States v.
Mason, 974 F.2d 897, 901 (7th Cir. 1992).
12 Nos. 06-3702 & 06-4248
and touched upon many § 3553(a) factors, including
the nature of the offense, Hamilton’s history and charac-
teristics, and the need for the sentence to reflect the
seriousness of the offense. He observed that Hamilton was
a “good father” who, in committing the bank robbery,
sought to provide for his family. Yet, Judge Coar believed
that Hamilton had “forfeited [his] right to participate” in
his children’s upbringing by committing a serious crime
involving guns, placing many individuals—including
innocent bystanders—at risk. The severity of the crime,
Judge Coar explained, warranted a serious punishment.
The judge concluded that Hamilton deserved a low-end-
range sentence because he was less culpable than the other
participants in the robbery and committed the crime “for
greed, pure and simple.” Thus, Judge Coar properly
considered the § 3553(a) factors in sentencing Hamilton.
Hamilton also attacks the reasonableness of his sen-
tence, arguing that because the district court did not
consider the § 3553(a) factors, it did not impose a sen-
tence “sufficient, but not greater than necessary” to
meet the goals set forth in 18 U.S.C. § 3553(a).
The only way Hamilton can rebut the presumption of
reasonableness we give to his sentence, which was prop-
erly calculated under the guidelines, is by demonstrat-
ing that his sentence is unreasonable when measured
against the factors set forth in § 3553(a). United States v.
Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005). Hamilton has
failed to do so. Stating only that “[a]pplication of the
[3553(a)] factors . . . cannot justify a sentence of 235
months,” Hamilton fails to engage in this analysis alto-
gether. As a result, we conclude that his sentence was
reasonable.
Hamilton next contends that the judge failed to make the
findings necessary to support his decision to impose a two-
level enhancement for obstruction of justice under sen-
Nos. 06-3702 & 06-4248 13
tencing guideline § 3C1.1. We review de novo the adequacy
of the district court’s obstruction of justice findings and
any underlying factual findings for clear error. United
States v. Sheikh, 367 F.3d 683, 686 (7th Cir. 2004).
A court may impose a two-level enhancement under
U.S.S.G. § 3C1.1 if “the defendant willfully obstructed
or impeded, or attempted to obstruct or impede, the
administration of justice during the course of the investi-
gation, prosecution, or sentencing of the instant offense
of conviction.” Obstruction of justice includes perjury,
which occurs when a witness testifying under oath gives
false testimony about a material matter with the willful
intent to provide false testimony, instead of as a result of
confusion, mistake, or faulty memory. United States v.
Dunnigan, 507 U.S. 87, 94, 113 S. Ct. 1111, 1116 (1993).
At trial, Hamilton testified that he believed he was
driving his codefendants to a marijuana transaction—not
a bank robbery. He claimed that he sped away from the
police in the getaway van because he was under duress: his
codefendants had put a gun to his head. Hamilton also
testified that he deliberately crashed the van into the pole
to put an end to the high-speed chase and subsequently
fled the crash scene because he thought the van was going
to explode.
Judge Coar concluded that Hamilton’s testimony
wasn’t credible: “Mr. Hamilton’s testimony was simply
unreasonable and in my opinion untrue at trial.” The
judge noted that while Hamilton had a right to testify on
his own behalf, “he did not have a constitutional right to
lie on the stand under oath.” That Hamilton lied, it
seems to us, is quite obvious.
Finally, Hamilton argues that the district court erred
in admitting Troupe’s testimony that a few days before
the December 9, 2004, robbery, he attended a party dur-
14 Nos. 06-3702 & 06-4248
ing which he heard Hill bragging about previous rob-
beries he had committed. As we previously noted, during
Hill’s commentary, Troupe observed Hamilton repeatedly
nodding his head, suggesting to Troupe that Hamilton
helped Hill commit these robberies. Because Hamilton
failed to raise this issue before the district court, we
review his argument only for plain error. United States
v. Reed, 227 F.3d 763, 770 (7th Cir. 2000). And the argu-
ment has no merit.
First, Hill’s statements about previous robberies he
committed are admissible as coconspirator statements
under Evidence Rule 801(d)(2)(E). Hamilton does not
dispute that the government established by a preponder-
ance of the evidence that a conspiracy to commit a new
robbery existed, that the declarant (Hill) and the defen-
dant (Hamilton) were members of that conspiracy, and
that the statements—aimed at recruiting new mem-
bers—were made in furtherance of the conspiracy. See
United States v. Skidmore, 254 F.3d 635, 638 (7th Cir.
2001).
In addition, evidence of Hamilton’s head-nodding dur-
ing Hill’s description of his previous criminal conquests
was properly introduced as an adopted admission under
Evidence Rule 801(d)(2)(E). Certainly, Hill’s comment
did not directly link Hamilton to the robbery and there-
fore doesn’t fit into the category of statements that, if
he were innocent, Hamilton would feel compelled to deny,
see United States v. Ward, 377 F.3d 671, 676 (7th Cir.
2004). Likewise, Hamilton’s head-nodding might sug-
gest not that he was adopting Hill’s statements, but
that he was impressed by Hill’s criminal exploits. Never-
theless, because Hill’s statement was made in Hamilton’s
presence and because Hamilton appeared to adopt it as
his own—signifying that he, too, participated in these
crimes—the statement was admissible under Rule
801(d)(2)(E).
Nos. 06-3702 & 06-4248 15
For these reasons, we AFFIRM both judgments of the
district court.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—2-19-08