United States v. LeShore, James L. ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-1555
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
JAMES L. L ES HORE,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Indiana, Fort Wayne Division.
No. 1:05-CR-57-TS—Theresa L. Springmann, Judge.
____________
A RGUED F EBRUARY 20, 2008—D ECIDED S EPTEMBER 11, 2008
____________
Before E ASTERBROOK, Chief Judge, and B AUER and W OOD ,
Circuit Judges.
W OOD , Circuit Judge. This case illustrates the impor-
tance of the standard of review that an appellate court
applies to asserted trial error. When an appellant wants
to complain about an error for the first time on appeal,
we ordinarily require the complaining party to demon-
strate plain error. See F ED. R. C RIM. P. 52(b). If the chal-
lenged ruling is one that we would have reviewed only
2 No. 07-1555
for abuse of discretion if a proper complaint had been
made in the district court, the appellant’s job is especially
difficult. That, in a nutshell, is the burden that appellant
James LeShore has shouldered here. Finding no reversible
error, we affirm his conviction and sentence for bank
robbery.
I
We draw our account of the facts from the district court’s
opinion, supplementing it with other information as
needed. On the morning of September 13, 2005, at about
9:30 a.m., the First Source Bank in Fort Wayne, Indiana,
was robbed by two African-American males wearing
white cloth masks. One of them brandished a gun. With a
bag full of money ($5,600, along with some bait money
and a dye pack), the robbers jumped into a blue van
and drove away. The van was later found abandoned in a
cemetery near a wooded area; its plates were registered to
Jeannie Colon and its steering column had been punched.
An eyewitness on the other side of the woods saw two
African-American men run from the woods into a bur-
gundy truck and drive away. Along the path from the
van through the woods to where the eyewitness saw the
men jump into the truck, police found a sleeve from
a white t-shirt; the rest of the t-shirt was not found.
LeShore does not challenge any of the facts we have
recounted thus far. At this point, however, his story
diverges from that of the police officers who eventually
arrested and questioned him. Officer Fritz Rommel testi-
fied that he picked up LeShore in front of a house belong-
No. 07-1555 3
ing to Lindsey Green, took LeShore to the police station,
and then escorted him into the interview room. Rommel
has no particular expertise in recognizing the effects of
drugs, but he does have some training in recognizing the
effects of alcohol. He stated that LeShore did not stumble,
slur his speech, disobey commands, or act strangely.
Rommel did not smell alcohol on LeShore’s breath. After
a 40-minute wait, Special Agent Restituto Loran inter-
viewed LeShore; the interview was recorded on a DVD.
Loran did have training in recognizing and dealing with
persons under the influence of both alcohol and drugs.
Loran testified that he did not notice any signs of intoxica-
tion, although he did smell pepper spray (which is com-
mon after a dye-pack explosion). Loran gave LeShore a
form explaining his Miranda rights, and then LeShore
read them aloud and signed the form. Loran then ques-
tioned LeShore, who recounted that he left his fiancée’s
house at 10:00 a.m. and found a bag of money already on
the back porch of Green’s house. LeShore said that he
never smoked any crack and was not impaired in any
way. After listening to LeShore, Loran and several other
officers confronted LeShore with incriminating evidence
including statements from Green, surveillance photos
from the bank, evidence connecting him to his fiancée’s
van, and the dye pack. Throughout the interview, LeShore
remained attentive and answered questions appropriately.
Before trial, LeShore moved to suppress the statements
he made during his interrogation and the associated DVD,
alleging that his Miranda waiver was invalid because he
was heavily intoxicated at the time. At the suppression
hearing, LeShore tried to provide a basis for that motion,
4 No. 07-1555
expanding on (and changing slightly) his previous narra-
tion. He testified that he woke up and left the house of his
fiancée, Jeannie Colon, before 8:00 a.m. that morning and
headed for a drug house, stealing a bike along the way.
He estimated that this trip took him an hour-and-a-half
to two hours. At the drug house, he smoked about
2.5 grams of crack and drank four or five beers. He then
proceeded to Lindsey Green’s house, where he smoked
another 1.5 grams of crack, drank several shots of vodka,
and cracked open a beer. He claims that he saw a pile
of money on the table in Green’s house and started to
pocket some of it. Green spotted him doing this and
kicked him out. He began walking back to the drug house,
saw a police car, turned around, and left the money on
the back porch of Green’s house in a bag. (The last of these
details was corroborated by an eyewitness; police dis-
covered some of the bait money from the bank in the bag.)
He was arrested in front of Green’s house around noon.
The district court found that LeShore’s testimony at the
suppression hearing was not credible and that he was not
impaired when he gave his Miranda consent. The court
therefore denied his motion to suppress the DVD of the
questioning and various inculpatory statements he had
made. At trial, LeShore was found guilty and convicted
of bank robbery with a dangerous weapon, 18 U.S.C.
§ 2113(a) & (d), and brandishing a firearm during a crime
of violence, 18 U.S.C. § 924(c). He was sentenced to a
total of 14 years’ imprisonment.
On appeal, LeShore challenges the admission of the DVD
of the interrogation and a list of bait money used at the
No. 07-1555 5
bank; he also asserts that even if the individual errors
are insufficient to warrant a new trial, there is cumula-
tive error that does.
II
LeShore attacks the admission of the DVD of his inter-
rogation on two grounds: first, that the DVD was unfairly
prejudicial and insufficiently probative, warranting
exclusion under F ED . R. E VID. 403, and second, that he
was intoxicated during the interview, which vitiated his
Miranda consent and rendered the statements he made
during questioning inadmissible.
A. Rule 403 Prejudice
Rule 403 allows the district court to exclude relevant
evidence “if its probative value is substantially outweighed
by the danger of unfair prejudice . . . .” Ordinarily, we
review a district court’s evidentiary ruling only for abuse
of discretion; when it comes to the necessarily context-
sensitive evaluation of a claim under Rule 403, “we give
special deference” to the district court’s findings and
reverse only when “no reasonable person could take the
view adopted by the trial court[.]” United States v. Cash,
394 F.3d 560, 564 (7th Cir. 2005).
LeShore’s position is complicated here, however, by the
fact that this objection was never raised at trial, which
means he must show plain error. (The Government argues
that LeShore did not merely forfeit this argument but
6 No. 07-1555
affirmatively waived it. Waiver would extinguish appel-
late review altogether. See United States v. Murry, 395
F.3d 712, 717 (7th Cir. 2005). No such waiver occurred,
however. If the pretrial ruling is definitive, as this one
was, no trial objection is necessary to preserve the objec-
tion for review. See Wilson v. Williams, 182 F.3d 562, 566
(7th Cir. 1999).) “Before we may correct an error not
raised at trial, we must find (1) that there is error, (2) that
it is plain, and (3) that it affects substantial rights. . . . Once
these three conditions have been met, we may exercise
our discretion to correct the error if it seriously affects
the fairness, integrity, or public reputation of judicial
proceedings.” United States v. James, 464 F.3d 699, 709 (7th
Cir. 2006) (citation omitted); see generally United States
v. Olano, 507 U.S. 725 (1993).
It is here that we must give some force both to the
abuse of discretion standard of review that would have
applied had LeShore made a proper objection and to the
plain error standard that applies to forfeited arguments.
Because LeShore never objected at trial on the grounds he
is now presenting, the district court did not have a
chance to exercise its discretion at all. LeShore therefore
must persuade us that it would have been an abuse of
discretion for the district court to have rejected his
position—indeed, such a serious abuse of discretion that
the plain error standard is satisfied. Given the
special deference paid to a district court’s assessment of a
Rule 403 argument, this is an extremely difficult showing
to make. LeShore must essentially show that the evi-
dence was so obviously and egregiously prejudicial that
the trial court should have excluded it even without any
No. 07-1555 7
request from the defense, and that no reasonable person
could argue for its admissibility.
LeShore’s arguments do not pass this high bar. On the
issue of the DVD’s probativeness, LeShore argues that the
video contained no inculpatory statement that could be
used for impeachment, because he did not testify at trial.
The Government points out, however, that the DVD
linked LeShore to some of the evidence from the crime
scenes, it corroborated several witness accounts, and it
established LeShore’s consciousness of his own guilt.
These are all reasonable suggestions. LeShore admits on
the video that he is left-handed, which matches the de-
scription of the gunman provided by eyewitness
accounts and shown in the video surveillance films
from the bank. LeShore admits on the video that Jeannie
Colon is his fiancée, and that admission links him to the
van in the surveillance video. In the interview LeShore
stated that the van was parked in front of his apartment
right before the robbery; this concession weakens the
inference that another person stole it and used it in the
robbery. The video interview corroborates the testimony
of an eyewitness, Green’s neighbor, who saw LeShore put
a bag on the corner of Green’s back porch. Finally, in the
interlude before the interview began LeShore checked
himself over, which the Government claims shows a
consciousness of guilt in light of the exploding dye
pack. He also carefully changed his story to place himself
at his own apartment when the robbery took place. (The
district court found that this story had changed by the
time of the suppression hearing.)
8 No. 07-1555
LeShore argues that the DVD depicts him in the posture
of someone who has already been deemed guilty, and thus
it was too prejudicial to use. (Indeed, Special Agent
Loran mentioned that they approached this interrogation
with LeShore’s presumptive guilt in mind—hardly surpris-
ing in itself, given the fact that the police had probable
cause to arrest him.) The real problem here is not that
the police approached their suspect as if he might be
guilty; it is that during the course of describing the inter-
rogation, the officer might put impermissible hearsay
evidence before the jury. The Government points to
other cases allowing mug shots and evidence of prior
criminality to be admitted, but all of the evidence in these
other cases provided crucial links in the Government’s
case, such as identification of the defendant. See, e.g.,
United States v. Rodriguez, 925 F.2d 1049, 1054-55 (7th Cir.
1991) (upholding admission of mug shot that provided
positive identification); United States v. Richardson, 562
F.2d 476, 478-79 (7th Cir. 1977) (affirming admission of
photograph and fingerprint card because they identified
defendant). To the extent the evidence from the DVD in
this case is probative, it is primarily as corroborative
material.
Even if LeShore is correct that the DVD did not contain
essential evidence, however, it is far from unreasonable
to think that it is probative—and certainly not so plainly
unreasonable that the district court should have barred
the evidence even without a motion. That is enough, under
the standard of review that governs here. This is not a
situation in which the district court necessarily would
have abused its discretion in admitting the evidence, and
No. 07-1555 9
thus LeShore’s argument fails on the first step of the
plain error analysis.
B. Intoxication and Miranda Consent
LeShore also argues that he was intoxicated during the
interview recorded on the DVD, and that he was thus in
no condition to provide a knowing waiver of his Miranda
rights. (Once again, the Government urges us to find
waiver, but we are satisfied that LeShore did not affirma-
tively give up this point.) The ultimate question whether
a confession was voluntary is one of law, and thus our
review of that issue is de novo. Miller v. Fenton, 474 U.S. 104,
110 (1985). We examine the totality of the circumstances
to assess “whether the defendant’s will was overborne,”
United States v. Hocking, 860 F.2d 769, 774 (7th Cir. 1988),
and we review factual determinations for clear error.
United States v. Haddon, 927 F.2d 942, 945 (7th Cir. 1991).
“[W]hen the interrogating officers reasonably should
have known that a suspect is under the influence of
drugs or alcohol, a lesser quantum of coercion may be
sufficient to call into question the voluntariness of the
confession.” Id. at 946. In addition, a valid waiver of
Miranda rights is necessary before a custodial statement
may be admitted. Miranda v. Arizona, 384 U.S. 436, 476
(1966). A valid waiver must be made knowingly, intelli-
gently, and voluntarily. Id. at 444. A valid waiver is
necessary but not sufficient for a voluntary statement: a
statement may still be found involuntary under the
totality of the circumstances even though the waiver was
valid. Baskin v. Clark, 956 F.2d 142, 145 (7th Cir. 1992).
10 No. 07-1555
LeShore runs into problems at the threshold: the district
court specifically found that “[LeShore] was not under
the influence of any drugs affecting his capacity to under-
stand what was going on or to intelligently assess his
situation.” This was a simple credibility determination.
LeShore said that he had smoked 2.5 grams of crack
before going to Green’s and had another 1.5 grams with
Green. Green admitted that she had taken a hit but not
enough to cloud her thinking. Special Agent Loran testi-
fied that nothing he saw alerted him to a present state of
intoxication during the interview. Loran was not im-
peached at trial, and LeShore offers no reason why we
should second-guess the district court’s decision to
credit Agent Loran’s testimony. The district court was
negatively impressed by LeShore because his story
changed between the interview and his testimony at the
suppression hearing, and he had twice been convicted of
false informing. If LeShore was not under any influence
that would diminish his capacity, then there is no cir-
cumstance that would lead us to question the validity
of his Miranda waiver, even on de novo review.
III
The second piece of evidence LeShore questions is the
list of bait money that was introduced at trial. The term
“bait money” refers to a packet of bills the serial numbers
of which a bank pre-records. The bank does not circulate
the bait money; the only way it leaves the bank is if it is
stolen. Thus, if a bill from a bait money list turns up, it was
most likely stolen at some point. A bait money list is a
No. 07-1555 11
writing offered to prove the truth of the matter as-
serted—that the money in evidence was part of a bait
money pack. This is classic inadmissible hearsay, FED. R.
E VID. 801, unless it can be shown to fall into one of the
enumerated exceptions recognized in FED. R. E VID. 803. We
review the district court’s interpretation of the Federal
Rules of Evidence de novo, American Automotive Accessories
v. Fishman, 175 F.3d 534, 540, n.1 (7th Cir. 1999), but we
review decisions to admit or exclude evidence for abuse
of discretion, United States v. Robbins, 197 F.3d 829, 837 (7th
Cir. 1999). The Government relied on the business
records exception to the hearsay rule, see FED. R. E VID.
803(6), to support admission of the bait money list. The
district court accepted that argument and let the list in,
and LeShore now asserts that this was error.
A document falls within the business records exception
if “1) the acts recorded therein were reported by a person
with knowledge, 2) it was the regular practice of the
[business] as a regularly conducted business activity to
record such acts, 3) the acts were recorded at or near
the time of their occurrence, and 4) the documents are
properly authenticated unless the source of information or
the method or circumstances of preparation indicate lack
of trustworthiness.” Wheeler v. Sims, 951 F.2d 796, 802 (7th
Cir. 1992) (citations and quotations omitted). The person
who testifies to the business record must be the custodian
of the documents, the person who compiled them, or
“have knowledge of the procedure under which the
records were created,” United States v. Wables, 731 F.2d
440, 449 (7th Cir. 1998).
12 No. 07-1555
LeShore’s challenge to the bait money list is that even
though the bank regularly kept this record, it was irregu-
larly compiled (in this case, remade): a new list was
made only after the theft (or loss) of an existing bait
money packet. By its very nature, therefore, LeShore
argues, a bait money list cannot be regularly compiled.
Compilations are generated only when a robber gets
away with the old packet. LeShore also challenges whether
Melinda Bowmar, a bank employee who testified about
the business records, had sufficient personal knowledge
to be a credible witness.
This argument overstates the spirit of both the rule
and the exception. The chief concern with hearsay evi-
dence is that it lacks sufficient indicia of reliability. Even
though the bank did not compile its bait money list regu-
larly, it verified the list three times per year. The Advisory
Committee indicated that regular verification is one of the
indicia of reliability that gave business records the status
of a freestanding exception in the first place. See F ED. R.
E VID. 803, 1972 Advisory Cmte. Notes, para. 6. Indeed, all
of the factors suggested by the Advisory Committee as
central to the justification for the exception are met in
this case: systematic checking, regularity and continuity
(giving rise to precision), actual reliance by the business,
and compilation and verification by someone whose duty
it is to do so. Id.
In this case, Melinda Bowmar, a bank employee, testified
that she had personal knowledge of how the list was made,
even though she did not put it together herself. It was her
job to maintain and verify the bait money list, and she
No. 07-1555 13
explained the procedure for creating the list in detail, down
to identifying how the bank tracked the money in different
tellers’ drawers. Her personal knowledge makes her a
“qualified witness” within the contemplation of Rule
803(6), and she substantiated the trustworthiness of the
bait money list by demonstrating how the business regu-
larly verified all of the serial numbers and relied on the
list. Indeed, the list introduced into evidence was the
very one used to identify some of the money LeShore
was caught with.
We find no legal error in the district court’s interpreta-
tion of Rule 803 or the business records exception, and no
abuse of its discretion to admit the evidence. (We need
not discuss LeShore’s challenge to the knowledge of
another witness, Ann Dennis, as the district court did not
rely on her.)
IV
Last, LeShore argues that the cumulative error of these
rulings infected his trial in a way that no single error did.
“The cumulative effect analysis requires a petitioner to
establish two elements: (1) at least two errors were com-
mitted in the course of the trial; (2) considered together,
along with the entire record, the multiple errors so
infected the jury’s deliberation that they denied the
petitioner a fundamentally fair trial.” Alvarez v. Boyd, 225
F.3d 820, 824 (7th Cir. 2000).
We can reject this argument quickly, because we have
found no error to begin with. LeShore cannot show,
14 No. 07-1555
furthermore, why the district court’s rulings might have
affected the outcome of the trial. The DVD corroborates
the Government’s case, but it was not a central piece of
evidence. Had it been excluded, the case would almost
certainly have come out the same way. Likewise, the bait
money list connects the currency with which LeShore
was caught with the money stolen from the bank. But the
jury was probably even more impressed by the presence
of red dye on his clothes and hands and the surveillance
video. Any error in admitting the evidence on which
LeShore has focused in his appeal was harmless.
* * *
The judgment of the district court is A FFIRMED.
9-11-08