United States v. Baggett, Donald ( 2008 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted July 7, 2008
Decided July 7, 2008
Before
RICHARD D. CUDAHY, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
No. 07-3743
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District of
Illinois, Eastern Division.
v.
No. 06-CR-918-1
DONALD BAGGETT,
Defendant-Appellant. Charles R. Norgle,
Judge.
ORDER
After a jury found him guilty of five counts of bank robbery, Donald Baggett was
sentenced to a total of 121 months’ imprisonment. See 18 U.S.C. § 2113(a). Baggett filed a
notice of appeal, but his newly appointed appellate counsel now moves to withdraw under
Anders v. California, 386 U.S. 738 (1967), because she is unable to discern a nonfrivolous
basis for the appeal. We invited Baggett to comment on counsel’s submission, see C IR. R.
51(b), but he has not responded. We therefore review only those potential issues identified
No. 07-3743 Page 2
in counsel’s facially adequate brief. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.
2002).
At trial a teller from each bank testified. Four of the tellers had previously identified
Baggett as the robber from a photo array. One teller testified that Baggett had a gun tucked
into the waistband of his pants. Each of the tellers testified that Baggett began the robbery
by presenting a note stating that he had a gun and would kill the teller after work if he was
not given cash. The government produced four of these notes recovered at the banks along
with a similar “kill you after work” note that police found in Baggett’s home. The
government also presented “bait bills” from the robbed banks that police found in
Baggett’s pockets and in his bedroom at the time of his arrest, along with clothing from his
home that resembled clothing worn by the robber. Moreover, a police officer testified that
she had seen Baggett fleeing the scene of one of the robberies. Baggett did not testify.
During the fifth robbery the bandit was carrying a folder stamped with the logo of
Resurrection Hospital, a Chicago healthcare facility, and a similar folder was seen but not
taken when authorities searched Baggett’s home. To drive home the point, the government
introduced a demonstrative “Resurrection Hospital” folder—not the actual folder from
Baggett’s house, but one obtained from the facility. The exhibit matched the folders visible
in a bank surveillance video and in a photograph taken inside Baggett’s bedroom when it
was searched. Baggett did not object to the admission of the folder, but he did argue
(unsuccessfully) that the jury should be prohibited from closely examining it. Then a
month after the verdicts, Baggett moved for a new trial, contending that the admission of
the “Resurrection Hospital” folder was unfairly prejudicial and that the district court
should have granted his motion for a judgment of acquittal. The district court denied the
motion, ruling that the evidence was sufficient and noting that Baggett had never explained
how the admission of the folder prejudiced him.
After that decision, Baggett, acting pro se, moved for substitute counsel because, he
argued, his trial lawyer had been ineffective. Baggett complained that counsel had not told
him how much evidence the government had compiled against him and claimed that he
would have rejected his lawyer’s advice to go to trial and instead would have pleaded
guilty had he known the breadth of the government’s case. Baggett also argued that the
Federal Rules of Evidence required that his lawyer call an agent from the Federal Deposit
Insurance Corporation (FDIC) to testify at trial, that his failure to do so denied him the
right of confrontation, and that in the absence of that testimony counsel should have
objected to the tellers’ statements that their banks were federally insured instead of
stipulating to that fact. And Baggett contended that trial counsel should have introduced
evidence that the arresting officers told him that his arrest was triggered by outstanding
Michigan warrants for “tickets” and violating probation. In response to Baggett’s pro se
No. 07-3743 Page 3
motion, counsel moved to withdraw. The district court allowed him to do so, though at the
same time observed that counsel had been an effective advocate.
At sentencing Baggett’s newly appointed lawyer objected to the government’s
proposed five-level upward adjustment for possessing a “firearm” during one of the
robberies, see U.S.S.G. § 2B3.1(b)(2), arguing that a three-level increase for possessing a
“dangerous weapon” would be more appropriate since Baggett had not been charged with
a gun crime and there was no evidence that he was carrying a real gun and not a toy, see id.
§ 2B3.1(b)(2)(E). In response the government played a surveillance video from one of the
robberies that, according to the government, showed Baggett holding a gun. The district
court agreed that the video depicted what appeared to be the handle of a gun, but
concluded that the government had not established that the gun was real. The court thus
applied the three-level increase advocated by defense counsel, resulting in an adjusted total
offense level of 30, which together with Baggett’s criminal history category of III yielded a
guidelines imprisonment range of 121 to 151 months. After considering the factors set forth
in 18 U.S.C. § 3553, including the seriousness of the crimes and Baggett’s remorse for his
actions, the court imposed the low end of the range and ordered restitution in the amount
of $30,633.
In her Anders submission, counsel first focuses on whether Baggett could challenge
the sufficiency of the evidence supporting his convictions. We would reverse only if,
considering the evidence “in the light most favorable to the prosecution,” no “rational trier
of fact could have found the essential elements of the crime beyond a reasonable doubt.”
Jackson v. Virginia, 443 U.S. 307, 319 (1979). But on this record there is more than sufficient
evidence from which the jury could have rationally found that Baggett robbed all five
banks. In this case the government had to prove that Baggett (1) by force or intimidation
(2) took from the person or presence of another (3) money belonging to (4) a federally
insured bank. See 18 U.S.C. § 2113(a); United States v. Carter, 410 F.3d 942, 952 (7th Cir.
2005). Baggett stipulated that the five banks were insured by the FDIC. And in addition to
the tellers’ testimony identifying Baggett as the robber in each instance and the police
officer’s testimony that she saw him driving away from the first heist, the government
offered surveillance videos depicting Baggett, a threatening note found in his house that
tracked those recovered from four of the five banks, and bait bills found in Baggett’s pocket
and bedroom. Any argument that this was not enough would be frivolous. See Carter, 410
F.3d at 952-53 (holding that evidence was sufficient where eyewitness, getaway car, note,
DNA, and shoe prints tied defendant to robbery); United States v. Galati, 230 F.3d 254, 258
(7th Cir. 2000) (holding that evidence was sufficient where bank tellers identified defendant
from photographs and government presented surveillance tapes, clothing, and palm prints
linking defendant to robbery).
No. 07-3743 Page 4
Counsel next considers whether Baggett could contest the admission of the
“Resurrection Hospital” folder. Because Baggett did not object to the folder’s admission at
trial, our review would be for plain error. See United States v. Wantuch, 525 F.3d 505, 515
(7th Cir. 2008). The government introduced the folder to connect the photograph of
Baggett’s bedroom to the surveillance video of the fifth robbery and to illustrate how
Baggett carried his demand notes into the banks. We have frequently approved the use of
demonstrative evidence to establish that a similar object was used in the commission of a
crime. See, e.g., United States v. Burt, 495 F.3d 733, 738-41 (7th Cir. 2007) (permitting
admission of excerpted chat room transcripts intended to aid witnesses in interpreting
unedited chat logs); United States v. Aldaco, 201 F.3d 979, 986-87 (7th Cir. 2000) (allowing
admission of replica shotgun); United States v. Salerno, 108 F.3d 730, 742-45 (7th Cir. 1997)
(permitting scale model of crime scene to be entered into evidence). Moreover, the district
court instructed the jury that the folder was a replica rather than the actual folder
photographed at the fifth bank and in Baggett’s bedroom, and we have routinely held that
such an instruction is sufficient to guard against any potential prejudice resulting from
juror confusion. See, e.g., Burt, 495 F.3d at 741; Aldaco, 201 F.3d at 986-87; United States v.
Towns, 913 F.2d 434, 446 (7th Cir. 1990). The “Resurrection Hospital” folder did not
unfairly prejudice Baggett in any way, see FED. R. E VID. 403; Aldaco, 201 F.3d at 986-87, and
counsel correctly concludes that any challenge to its admission into evidence would be
frivolous.
Finally, counsel considers whether Baggett could argue that his trial counsel was
ineffective. But we have repeatedly stated that any such claim is better left for a collateral
proceeding. See United States v. Harris, 394 F.3d 543, 557 (7th Cir. 2005) (collecting cases).
Counsel has been unable to identify any basis for bringing an ineffective-assistance claim
on direct appeal, and so any claim Baggett might have is best saved for a collateral
proceeding where that claim can be fully developed. See United States v. Wilson, 481 F.3d
475, 485 (7th Cir. 2007).
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal.