United States v. Hill, Eddie ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 07-3341
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
E DDIE H ILL,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 04 CR 1074—David H. Coar, Judge.
A RGUED S EPTEMBER 8, 2008—D ECIDED D ECEMBER 31, 2008
Before P OSNER, K ANNE, and T INDER, Circuit Judges.
T INDER, Circuit Judge. Eddie Hill was indicted for two
Chicago-area bank robberies, one occurring in 2002 and
the other in 2004. The four-count indictment also in-
cluded two corresponding counts of possessing a firearm
during the commission of a crime of violence related to
each of the robberies. A jury found Hill guilty of the
charges associated with the 2004 robbery but was unable
to reach a verdict on the 2002 robbery and the related
2 No. 07-3341
firearm count. The district judge accepted the verdicts on
the 2004 counts and declared a mistrial on the other
two counts. Rather than proceeding with an immediate
retrial of the 2002 charges, the court held a sentencing
hearing on the 2004 counts, which resulted in a sentence
of imprisonment of 360 months for Hill. Hill argues in
this appeal that his convictions should be reversed on
two grounds—the jury selection process and the ad-
mission of evidence documenting his purchase of an
S-Type Jaguar shortly after the 2002 robbery.
I. Background 1
Eddie Hill, his brother Michael, Cornelius Price, and
Cleve Jackson planned to rob a bank in the fall of 2002,
or at least Jackson so testified as a witness for the gov-
ernment during trial. According to Jackson, this group
drove to the First Security Federal Savings Bank in
Chicago the morning of October 2, 2002. Jackson’s role
was to be the lookout, Michael was the getaway driver,
and Price and Hill performed the robbery. Jackson
watched as Price and Hill accosted a bank employee
who was unlocking the outer door of the bank. The bank
1
We recount the facts in the light most favorable to the
verdict. United States v. Gibson, 530 F.3d 606, 607 (7th Cir.
2008). We discuss the trial testimony about the 2002 robbery
because of its connection with the 2004 robbery, mindful that
Hill was only convicted of the 2004 counts. There is no dis-
pute that the robberies were properly joined in a single indict-
ment and trial.
No. 07-3341 3
employee testified that two men rushed up to him while
he was opening the door and pressed a gun against his
back. They forced him to turn off the alarm and put cash
from the vault into a laundry bag. The men escaped
from the bank through a back door with approximately
$151,000.
In December 2004, Hill and Jackson planned to rob
another bank, this time with two other cohorts, Vincent
Hamilton and Lavonas Troupe. During this venture, Hill
was stationed as the lookout, Jackson and Troupe per-
formed the robbery, and Hamilton was the getaway
driver. Jackson and Troupe approached two bank em-
ployees as they were entering the North Community
Bank in Chicago. Jackson pointed a gun at the em-
ployees and forced them to give the men access to the
vault and turn off the alarm. Jackson held a gun to the
head of an employee as she opened a safe within the
vault. Jackson and Troupe escaped into the getaway van
through an alley behind the bank with approximately
$119,000. This time, however, the robbers were not so
lucky, as two witnesses observed Jackson and Troupe
pushing the employees into the bank. They called the
police, who arrived on the scene just as Hamilton was
driving away. The witnesses, who were waiting across
the street at a gas station, pointed the police in the di-
rection of the getaway van and pursuit was quickly
underway. The police chase ended, as they often do,
when the getaway van crashed into a pole. Jackson and
Troupe attempted to flee on foot—and ran straight into
an area enclosed by a fence. All three men were arrested.
Later, Jackson’s sister (who was also Troupe’s girlfriend)
4 No. 07-3341
recorded a conversation with Hill in which he described
his involvement in the robbery as the lookout.
Hill, Michael, and Price were charged in connection
with the 2002 robbery. Price was convicted of bank robbery
and possessing a firearm during the commission of a
crime of violence. Hill and Michael were tried together,
and the jury was unable to reach a verdict as to the
counts against either of them arising from this robbery.
Michael later pled guilty to the lesser charge of bank
larceny for this offense.
Hill, Jackson, Hamilton, and Troupe were charged in
connection with the 2004 robbery. Jackson and Troupe
pled guilty to the robbery and possessing a firearm during
the commission of a crime of violence. Hamilton was
tried separately from the Hill brothers, and like Eddie
Hill, was convicted of the 2004 bank robbery and possess-
ing a firearm during the commission of a crime of vio-
lence. This appeal involves only Eddie Hill.
II. Jury Selection
Hill argues that the district court violated the procedure
used for peremptory strikes and selecting alternate
jurors, which left him unable to properly cure bias that
remained undiscovered because of an inadequate voir
dire. Federal Rule of Criminal Procedure 24 sets out the
process for exercising peremptory strikes and selecting
alternate jurors. For a felony charge (i.e., a crime punish-
able by imprisonment for more than a year), the govern-
ment has six peremptory challenges and the defense
No. 07-3341 5
(either a defendant, if tried alone, or defendants, if tried
jointly) has ten peremptory challenges. Fed. R. Crim. P.
24(b)(2). The court can impanel up to six alternate jurors,
who must replace jurors in the same sequence in which
the alternates were selected. Fed. R. Crim. P. 24(c)(1)-(2).
When one or two alternate jurors are empaneled, one
additional peremptory challenge is permitted (and more
if additional alternate jurors are to be selected). Fed. R.
Crim P. 24(c)(4).
In United States v. Mendoza, 510 F.3d 749, 753 (7th Cir.
2007), we noted that it was the usual practice of a particu-
lar district court judge to seat sixteen jurors to hear the
evidence presented and then randomly select four in-
dividuals to be alternates after the presentation of evi-
dence. Though we acknowledged there were some
benefits to proceeding in that manner, we held that
deviation from Rule 24 was not within the sound discre-
tion of the district court, and we asked the court to dis-
continue its practice. Id.; see also United States v. Delgado,
350 F.3d 520, 524 (6th Cir. 2003) (“Federal rules of proce-
dure should not, of course, be disregarded by courts any
more than by litigants.”). We concluded that the error
was not reversible because the defendant did not demon-
strate that the error affected his substantial rights by
showing, for example, that the jury was not impartial.
Mendoza, 510 F.3d at 754.
The trial in this case tool place several months before
the release of our opinion in Mendoza, so neither the
trial judge nor counsel had the benefit of the Mendoza ad-
monition. Consequently, the prosecutor and Hill’s attor-
6 No. 07-3341
ney agreed to a procedure for jury selection (which also
varied from the strictures of Rule 24) and suggested it
to the judge.
MR. POPE [Assistant U.S. Attorney]: I have spoken
with defense counsel, and what we would propose
to the Court is that . . . the government be allotted
8 peremptory challenges, the defense be allotted
13 peremptory challenges. That is for both the actual
jury and then the alternate jurors, all of which [are] to
be used at once not reserving the one and one as
suggested by the rules. And I also would suggest
that we just have two alternate jurors in this case
given that we’re likely to have four, maybe five days
of trial in this case.
THE COURT: Now, which jurors will be—since we’re
going to do it that way, which jurors will be the al-
ternates?
MR. POPE: What I would propose, Your Honor, is
given how you select yours, it would be the last
jurors on what, you know, is termed the judge’s list.
Whoever jurors 13 and 14 are on that list as you count
through, that those would be the alternate jurors.
MR. WILLIS [Michael’s Hill’s Attorney]: I agree with
[that].
MR. HUNTER [Eddie Hill’s Attorney]: I agree as well.
Accordingly, this agreed procedure was used. The
government concedes that the court erred by allowing
this method of exercising peremptory strikes, but it
contends that Hill has waived any error by affirmatively
No. 07-3341 7
agreeing to the method. Hill argues that the error is of a
type that cannot be waived, and he urges us to review
for plain error. As we have often explained, a waiver is
a knowing and intentional relinquishment of a right,
and forfeiture is an unintentional relinquishment. United
States v. Knox, 540 F.3d 708, 713 (7th Cir. 2008). Waiver
precludes appellate review, but forfeiture allows us to
review for plain error. Id.
In Mendoza, we reviewed for plain error because there
was no indication that the defendant had affirmatively
agreed to the error. Because Hill, through his counsel,
unequivocally agreed to the procedure used in this
case, Hill instead suggests that compliance with Rule 24
is not waivable. He offers the analogy of the right to a
unanimous jury, which is both constitutionally pro-
tected and part of the Federal Rules of Criminal Pro-
cedure. United States v. Fawley, 137 F.3d 458, 470 (7th Cir.
1998); Fed. R. Crim. P. 31(a). His analogy is inapt. A defen-
dant’s willing divergence from the proper method used
to select jurors is quite different from allowing a de-
fendant to risk his liberty through a verdict that is not
unanimous. Hill suggests that because we stated in
Mendoza that the district court did not have discretion
to re-write the rules, surely the parties cannot be entitled
to craft their own rules either. Indeed, the parties are not
entitled to craft their own rules. But where the district
court has erred by allowing the parties to diverge from
the selection procedure in Rule 24, the defendant
should not be entitled to receive the benefit of a new trial
for a procedural error that he helped to create.
8 No. 07-3341
Even if we were to treat this as a case of forfeiture
and review for plain error, Hill would not prevail. To
reverse for plain error, we must find that Hill established
a clear error that affected his substantial rights and im-
pacted the fairness, integrity, or public reputation of the
judicial proceedings. United States v. Moore, 543 F.3d 891,
896 (7th Cir. 2008) (citing United States v. Allen, 529 F.3d
390, 395 (7th Cir. 2008)). The government concedes that
if the concept of forfeiture is applied, the error is plain,
and Hill goes one step further to argue that his sub-
stantial rights were violated because an inadequate voir
dire caused the selection of a biased jury. The primary
reason for the existence of peremptory strikes is “to help
secure the constitutional guarantee of trial by an
impartial jury,” United States v. Martinez-Salazar, 528 U.S.
304, 316 (2000), and Hill argues that the unusual pro-
cedure adopted in this case deprived him of the ability to
cure the jury’s bias through the exercise of peremptory
strikes. As noted by the panel at oral argument, an inade-
quate voir dire resulting in a biased jury is reversible error
in itself; an additional failure of the curative process
through the use of peremptory strikes would be unneces-
sary. Nevertheless, we analyze the issue as Hill has
framed it.
“It is axiomatic that the purpose of voir dire is to ensure
that the defendant will have an impartial jury.” United
States v. Guy, 924 F.2d 702, 707 (7th Cir. 1991). Federal
courts have broad discretion to determine appropriate
questions for voir dire, subject to “essential demands of
fairness.” United States v. Hasting, 739 F.2d 1269, 1272 (7th
Cir. 1984) (citing Aldridge v. United States, 283 U.S. 308,
No. 07-3341 9
310 (1931)). We look to the district court’s questions to
determine whether the court’s method of testing impartial-
ity created “a reasonable assurance that prejudice would
be discovered if present.” Guy, 924 F.2d at 707 (citing
United States v. Dellinger, 472 F.2d 340, 367 (7th Cir. 1972)).
Hill does not have to prove that a jury member was, in
fact, biased. Id.
In this case, the district court began questioning for
bias with the following admonishment to the venire:
Now, ladies and gentlemen, we all have the God
given right in this country to believe whatever we
like and to make decisions as we see fit. Outside of this
courthouse and in our personal lives you can make
decisions and judge people on any basis you choose.
Opinions about wealth, occupation, political party,
religious affiliation, color, race, size, sex, national
origin, whatever you think is important. As a human
being I have deeply held opinions and biases, and
I suspect that you have some too. But I have taken an
oath that says as a judge I will to the very best of my
ability put my stereotypes and biases aside and
decide cases on the merits, not based on my
personal views.
If you’re selected as a juror in this case, you must take
an oath to do the same thing. The question that
we have to answer in jury selection is whether any
of you have particular biases that you cannot put
aside. So for the next couple of hours that’s what
we’re trying to find out. The lawyers, the parties, and
I are going to need to get to know you a little bit so
10 No. 07-3341
that we can make our own judgments about whether
or not you can sit as a fair juror in this case.
The court then summarized the indictment and ex-
plained the presumption of innocence and the burden of
proof. The court asked the prospective jurors if anyone
had heard anything about the case. After questioning
one prospective juror who volunteered that she had
heard about one of the robberies, the court continued:
Having heard the charges, is there anyone here
who feels that he or she should not be a juror in a case
in which those are the charges? If so, please raise
your hand.
Is there anyone who believes that there’s anything
about the nature of the case that would make if diffi-
cult for him or her to sit as a fair juror in the case? If
so, please raise your hand.
None of the prospective jurors responded.
The court then individually asked all of the prospec-
tive jurors typical biographical questions to ferret out
bias, such as where they and their family members lived
and worked, whether they had ever been arrested,
whether they had been involved in any lawsuits, and
whether they knew any of the attorneys, defendants, or
witnesses. The court asked follow-up questions when
prospective jurors gave answers that might indicate
bias. Several prospective jurors responded that they
might have some bias because they had negative experi-
ences with a lawsuit, they had been a victim of a crime, or
they had positive or negative experiences with the po-
No. 07-3341 11
lice. The district court gave the prospective jurors the
opportunity to discuss any other potential biases outside
of the presence of the other jurors. Finally, the court and
attorneys asked several prospective jurors additional
questions at a side bar.
Hill’s arguments focus on a particular prospective
juror, so we recount the court’s interaction with him.
Prospective Juror Salvador indicated that he had worked
as a contractor for the federal government focusing on
computer network issues. When the court asked whether
his previous job experience would have an affect on his
ability to be impartial in the case, Mr. Salvador claimed
that it might. Later, when the court asked if anyone
had any positive or negative feelings about the Chicago
Police Department or the Federal Bureau of Investiga-
tions, Mr. Salvador spoke up again. He explained that
his home had been burglarized once and the Chicago
Police Department took a very long time to arrive. They
took some fingerprints but never got back to him with
any more information. He claimed the negative ex-
perience with the police would affect his ability to be
impartial in the case. Finally, the court called Mr. Salvador
to answer some questions at a side bar:
THE COURT: Mr. Salvador, I still don’t understand . . .
why working [as a government contractor] might
impact you in this case.
MR. SALVADOR: It goes further than that. . . . I don’t
know if you have time to listen to it. I was brought up
by a father who was pro-government, pro-law. This
is when I was a little kid, he engrained [sic] this into
12 No. 07-3341
me. As I grew older, I was even more so, so much so
that I don’t believe in the rights of criminals. I’ll be
honest with you, Judge. I just don’t, and I never have.
If a criminal was going to take away the rights of the
victims he intimidated or hurt, then certainly he’s
not worthy of any rights himself. I’m sorry. That’s
how I feel.
THE COURT: That’s the way you feel.
MR. SALVADOR: Condemn me for it, but it’s true. I’ve
always been pro-law and pro-death penalty.
THE COURT: Anybody got any questions?
MR. HUNTER [Eddie Hill’s Attorney]: When the
judge asked you—everybody if they had a problem
with the presumption of innocence or the right to
remain silent, you didn’t raise your hand.
MR. SALVADOR: No, because it means nothing. It
really doesn’t. My mind’s already made up. Whether
or not a person takes the 5th Amendment so he
won’t incriminate himself, whatsoever, makes no
difference. I already have an opinion of criminality. It
may not be the most logical, but it’s how I believe.
MR. POPE [Assistant U.S. Attorney]: But you don’t
believe somebody should have the right to remain
silent?
MR. SALVADOR: It’s up to them. Because if the
evidence support that that criminal—the alleged
criminal is guilty of that crime. I look at it this way: A
person would never have been arrested unless the
police had some pretty good proof.
No. 07-3341 13
The experienced trial judge immediately dismissed Mr.
Salvador for cause, aptly expressing to the attorneys that
Mr. Salvador seemed to be using every possible reason
to get out of jury duty. The court also dismissed several
other prospective jurors for cause, and then the parties
exercised their peremptory challenges. None of the pro-
spective jurors who indicated during voir dire that they
might be biased was named as a juror or alternate juror.
Hill claims that Mr. Salvador’s “bizarre and unexpected
statements” at the side bar put the district court on
notice that its earlier general questioning was insufficient
to uncover bias, and the court should have asked addi-
tional questions. Hill acknowledges that we have previ-
ously held that general group questioning can be suf-
ficient to uncover bias. See, e.g., Guy, 924 F.2d at 707-08;
Hasting, 739 F.2d at 1271-72. Hill argues, however, that
despite the appropriate questions asked by the court, the
atmosphere must have been so oppressive during the
voir dire that prospective jurors, such as Mr. Salvador,
did not feel comfortable airing unpopular views in front
of the other jurors. Because the general questioning
was inadequate, he argues, there is a reasonable likelihood
that members of the actual jury were biased, even
though Mr. Salvador was dismissed.
Some prospective jurors undoubtedly find voir dire
intimidating, but Hill gives us no reason to believe that
the atmosphere in this case was particularly stifling.
The court asked appropriate general questions of the
group and followed up with careful individual ques-
tioning of every prospective juror. No less than fourteen
14 No. 07-3341
prospective jurors felt comfortable enough to admit to an
experience or a personal belief that might cause him or
her to be biased. Mr. Salvador himself claimed to be
biased twice during the individual questioning—once
in favor of the government and once against the gov-
ernment. We simply cannot accept Hill’s arguments that
Mr. Salvador felt so constrained that he could not air his
views in front of the other jurors and that his reluctance
should be attributed to the whole group of prospective
jurors. Perhaps Mr. Salvador actually held the beliefs
he articulated at the side bar, in which case the district
court properly safeguarded Hill’s rights by dismissing
him for cause. Or perhaps, as the district judge guessed,
Mr. Salvador was merely attempting to be removed from
the venire by claiming for a third time that he held a bias.2
2
Though it’s an unfortunate practice and poor citizenship (and,
hopefully, rare), some prospective jurors attempt to avoid jury
duty by making odd or inflammatory statements. This was
recently parodied by the popular actress Tina Fey, whose
character Liz Lemon in the television show 30 Rock success-
fully avoided jury duty (in Chicago, no less) by dressing like
Princess Leia (of Star Wars fame) and announcing “I don’t
really think it’s fair for me to be on a jury because I can read
thoughts.” 30 Rock: Believe in the Stars (NBC television broad-
cast Nov. 6, 2008), available at http://www.nbc.com/30_Rock/
video/episodes/?vid=816701 (last visited Dec. 19, 2008).
While such conduct may be amusing in a television sitcom, it
is not seen as humorous by trial judges in real life. Anyone
attempting to gain rejection from jury service by providing
false or disruptive information during voir dire should keep
(continued...)
No. 07-3341 15
In either case, the district court’s method of testing impar-
tiality has reasonably assured us that prejudice, if present,
would have been discovered. Guy, 924 F.2d at 707 (citing
United States v. Dellinger, 472 F.2d 340, 367 (7th Cir. 1972)).
We also note that Hill received more peremptory chal-
lenges than he would have been entitled under Rule 24—
the parties agreed that Hill would have thirteen strikes
instead of ten for the jury plus one for the alternate jurors.
Even so, Hill only used twelve of the thirteen strikes.
Hill claims that he ultimately was only given twelve, but
his citation in support of that argument is merely to the
page of the transcript where the twelve strikes were
used, which says nothing about how many strikes he
had in total. We have previously rejected a defendant’s
challenge to the impartiality of the jury where the defen-
dant had not used all of his available peremptory strikes.
United States v. Ricketts, 146 F.3d 492, 496 (7th Cir. 1998).
III. Car Purchase Record
Hill also appeals the admission of certain evidence at
trial. The government introduced business records show-
ing that Hill, Michael, Price, and Jackson—“with the
cash apparently burning a hole in their pockets,” United
States v. Price, 516 F.3d 597, 602 (7th Cir. 2008)—each
purchased an expensive used car within two days of the
2
(...continued)
in mind that they are under oath during the process and that
the trial judge has contempt powers.
16 No. 07-3341
2002 robbery. One of the records, from American Car
Exchange, showed that Hill purchased a 2000 Jaguar on
October 4, 2002, for $20,000, paying $8,000 in cash as a
down payment.
The problem with the purchase record, however, is
that sometime after Hill’s car purchase but before his
trial, American Car Exchange was indicted by the
federal government on charges that included fraud and
racketeering. Ramona Rodriguez, a former employee of
American Car Exchange who was also indicted, testified
at Hill’s trial as the custodian of the record. She testified
that, at the request of the buyer, American Car Exchange
sometimes listed a different individual’s name as the
buyer. The listed individual had to be present and show
identification. American Car Exchange also sometimes
misreported the sales price and down payment of the
car being sold. Hill contends that the district court erred
by admitting the purchase record.
We review the district court’s decision to admit evidence
for an abuse of discretion. United States v. LeShore, 543 F.3d
935, 941 (7th Cir. 2008). Generally, we give great deference
to the court’s decision to admit a business record. Price,
516 F.3d at 605. A business record is not admissible where
the source of information or the method or circumstances
of preparation indicate lack of trustworthiness. LeShore,
543 F.3d at 941; Fed. R. Evid. 803(6). In Price—the appeal
of Cornelius Price for his conviction for the 2002 rob-
bery—we reviewed the court’s decision to admit the
same purchase record that is at issue in this case, Hill’s car
purchase record from American Car Exchange. We con-
No. 07-3341 17
cluded that because American Car Exchange “frequently
and deliberately crammed [the records] with inaccurate
information at the request of the purchaser,” the district
court erred in admitting Hill’s purchase record under the
business record rule. Price, 516 F.3d at 605. We held,
however, that the error was harmless because the gov-
ernment had presented the jury with substantially similar
evidence of car purchases by Michael, Jackson, and Price
himself. Id.
The government concedes that the district court erred
by admitting the purchase record but argues that the
error was also harmless in this case. We agree. First, and
most significantly, the evidence pertained to the 2002
robbery. Hill was only convicted on the 2004 counts. We
can safely assume that the jury was not persuaded of
Hill’s guilt due to evidence that he bought an expensive
car two years prior to the robbery in question. Second, the
purchase record was not the only evidence that Hill
bought a Jaguar shortly after the 2002 robbery because
Jackson testified that he saw Hill driving a Jaguar a few
days after the robbery; previously Hill only drove a
Monte Carlo.
Hill contends that the record was still highly prejudicial
to him because it associated him with a known criminal
enterprise, which reflected poorly on his character. We
are not persuaded by this argument. If the purchase
record was so highly prejudicial, then it seems logical that
the jury would have convicted him of the 2002 counts as
well as the 2004 counts. Further, no one testified that Hill’s
purchase record was inaccurate or that Hill knew that
18 No. 07-3341
American Car Exchange engaged in illegal activity. A
person’s patronage of a business that is later indicted is
not inherently prejudicial where there is no indication
that the person knew of the illegality. The district court’s
decision to admit the purchase record was, at worst,
harmless error.
IV. Conclusion
We conclude that the district court’s errors in the jury
selection process and admission of evidence do not war-
rant reversal. Therefore, we AFFIRM .
12-31-08