United States v. Curry, Daniel W. ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-2455
U NITED STATES OF A MERICA,
Plaintiff-Appellee,
v.
D ANIEL W. C URRY, Defendant-Appellant.
____________
Appeal from the United States District Court
for the Southern District of Indiana, Terre Haute Division.
No. 06 CR 11—Larry J. McKinney, Judge.
____________
A RGUED A PRIL 1, 2008—D ECIDED A UGUST 15, 2008
____________
Before C UDAHY, R IPPLE and R OVNER, Circuit Judges.
R IPPLE, Circuit Judge. On May 9, 2006, Daniel Curry was
indicted on four counts of armed bank robbery, in violation
of 18 U.S.C. § 2133(a) and (d), and four counts of using a
firearm in relation to a crime of violence, in violation of 18
U.S.C. § 924(c). A jury convicted Mr. Curry on all counts,
and the district court sentenced him to 1,071 months’
imprisonment, five years of supervised release and restitu-
tion in the amount of $1,052,337.65. For the reasons set
forth in this opinion, we affirm his conviction and sentence.
2 No. 07-2455
I
BACKGROUND
A.
This case involves a series of armed bank robberies that
occurred in central and western Indiana between 2003 and
2006.
The first robbery took place on April 9, 2003, when two
armed men entered a branch of the Terre Haute First
National Bank. One of the men, brandishing a handgun,
controlled the lobby, while the other man gained access to
the bank’s vault. The subjects stole approximately $311,793
from the bank. They then fled the scene in a maroon BMW
coupe that had been reported stolen from the Terre Haute
area the previous day.
Witnesses described the perpetrators as two older white
males; however, they were unable to give a more detailed
description because the perpetrators’ features had been
obscured by the heavy winter clothing, wigs, sunglasses
and fake facial hair that the men had been wearing. The
stolen coupe that had been used as the getaway car later
was recovered in a nearby parking lot. Its owner reported
that his silver handgun, which he had kept in the glove
box of the car, was no longer inside the vehicle.
Similarly, on February 9, 2005, a branch of Old National
Bank in Terre Haute, Indiana was robbed of approximately
$394,108 by two men brandishing handguns. The perpetra-
tors again were described as two white males wearing
hooded sweatshirts, baseball caps, gloves, sunglasses, fake
moustaches and artificial beards. After conducting the
No. 07-2455 3
robbery, the individuals fled in a stolen Mercury Grand
Marquis. Officers later recovered the Grand Marquis and
another stolen vehicle, a Pontiac Grand Prix, in close
proximity to the bank. A brown cloth glove was found on
the driver’s seat of the Grand Prix.
The third robbery occurred on December 9, 2005, at a
branch of Regions Bank in Kokomo, Indiana. In a manner
similar to that of the Terre Haute robbery, two armed men
displaying silver handguns entered the bank and stole
approximately $118,961. The subjects fled the scene in a
maroon 1996 Dodge Stratus. A car with that same descrip-
tion had been reported stolen from Greenwood, Indiana,
three days prior to the robbery. Witnesses described the
robbers as two white males wearing heavy winter clothing,
wigs, sunglasses and fake facial hair.
The final robbery occurred on January 19, 2006, when
a branch of Fifth Third Bank in Terre Haute, Indiana was
robbed of approximately $237,563. Like the other robberies,
this one was conducted by individuals described as older
white males wearing bulky winter clothing, baseball caps,
wigs, sunglasses and artificial facial hair, and armed with
silver handguns. Unlike in the other robberies, however,
the teller at this bank managed to include red dye packs
inside the bundles of money that she passed to the robbers.
These dye packs were designed to explode within ten
seconds of passing a sensor located at the front door of
the bank. Witnesses reported seeing the red dye packs
explode as the robbers left the building.
The robbers drove away from the Fifth Third Bank in a
stolen blue Geo Tracker. This vehicle later was recovered
4 No. 07-2455
a few blocks from the bank, with large red dye stains on
the floor. A Pontiac Montana, which had been reported
stolen from Crawfordsville, Indiana earlier that day, also
was recovered near the bank. Investigators found a fake
beard and a fake moustache in the seating area of the
stolen Montana.
On four occasions in early 2006, soon after the Fifth Third
Bank robbery, Mr. Curry appeared at various banks in
Bloomington, Indiana, where he conducted transactions
using large quantities of cash heavily stained with red dye.
During two of these transactions, Mr. Curry told the bank
teller that he had won the red-stained money in a poker
game. During another of these transactions, Mr. Curry told
the bank teller that the money became stained when he
accidentally had washed it in the washing machine
with some red clothing.
The FBI was notified of these transactions, and it began
monitoring Mr. Curry. On February 8, 2006, an FBI agent
observed Mr. Curry purchasing chips at the Caesar’s
Riverboat Casino in Elizabeth, Indiana, using large quanti-
ties of red-stained bills. The agents also observed him, on
several occasions, entering and leaving a storage facility in
Martinsville, Indiana, where a storage unit was registered
in his name. On February 10, 2006, FBI agents obtained
warrants to search Mr. Curry’s residence and storage
locker.
When the agents executed the search warrant for Mr.
Curry’s residence, they found more than five thousand
dollars in cash, including bills bearing bank straps from
Regions Bank and bills stained with red dye, hidden inside
No. 07-2455 5
a work bench in Mr. Curry’s garage. Their search of the
storage locker recovered a red gym bag, embroidered with
Mr. Curry’s name, which contained a wig, sunglasses,
artificial facial hair, liquid latex, baseball hats and two ski
masks. They also found a bag of .38 caliber bullets, multi-
ple hooded jackets and more than $140,000 in cash, much
of which was stained with red dye and/or wrapped in
bank straps bearing the names of the banks that had been
robbed. Additionally, the locker contained the Lorcin .38
caliber handgun that had been stolen from the BMW coupe
used in the April 9, 2003 robbery; it, too, was covered in
red dye. After the searches, the agents arrested Mr. Curry.
The subsequent investigation uncovered even more
evidence. Motel records showed that Mr. Curry had been
staying in Crawfordsville, Indiana on the day that the
Pontiac Montana, the car that had been used as the “switch
car” in the January 19 Terre Haute robbery, had been
stolen. Mr. Curry had checked out of his motel in
Crawfordsville at 5 a.m. on January 19, just hours before
the Terre Haute robbery occurred. Cellular telephone
records also placed Mr. Curry’s cell phone in
Crawfordsville that morning and in Terre Haute a few
hours later, near the time of the robbery.
Furthermore, agents conducted forensics testing on the
fake beard and fake moustache that were found on the
seat of the stolen Montana and the glove that was found
inside the stolen Grand Prix. DNA recovered from the
beard and from the glove was traced to Mr. Curry. DNA
recovered from the moustache, however, was linked to
Mr. Curry’s brother, Arthur Curry.
6 No. 07-2455
Arthur Curry was arrested soon thereafter in North
Carolina. A search of Arthur Curry’s residence recovered
approximately $85,000 in red-stained currency, marked
bills from the January 19, 2006 robbery, bank straps bearing
the names of the victim banks in the last two robberies
and various disguises.
B.
On May 9, 2006, Daniel Curry and his brother, Arthur
Curry, each were indicted with four counts of armed bank
robbery, in violation of 18 U.S.C. § 2133(a) and (d), and
four counts of using a firearm in relation to a crime of
violence, in violation of 18 U.S.C. § 924(c). Arthur Curry
entered a guilty plea. Daniel Curry, however, proceeded
to trial.
At Mr. Curry’s trial, the Government presented the
testimony of eleven employees who had been working at
the various victim banks at the time that they had been
robbed. These witnesses described the perpetrators and
their unique attire, as well as the similar method of the
robberies. The Government then presented the testimony
of the officers and agents who had investigated Mr. Curry.
These witnesses testified regarding Mr. Curry’s attempts
to pass the red-stained money at banks and casinos; they
also testified regarding the red-stained money, bank straps,
stolen gun and gym bag full of disguises that they had
found in the search of Mr. Curry’s residence and storage
locker.
Furthermore, the Government introduced into evidence
the surveillance footage from the bank robberies. It pro-
No. 07-2455 7
duced the false facial hair and the glove that were found
inside the stolen getaway vehicles; a forensics analyst
testified that Mr. Curry’s DNA was found on both the
glove and the false beard. The relevant items found
inside Mr. Curry’s garage and storage locker also were
admitted into evidence. Finally, the Government intro-
duced copies of motel and phone records that placed
Mr. Curry in Crawfordsville, Indiana, a few hours before
a car stolen from Crawfordsville was used in a bank
robbery in Terre Haute.
Mr. Curry chose to testify in his own defense at trial
and deny any involvement in the robberies. He suggested
instead that his brother, Arthur, had perpetrated these
crimes with another, unidentified individual. He testified
that Arthur Curry had a key to his storage locker, and he
asserted that the incriminating items recovered there had
belonged to Arthur, not him. Mr. Curry explained that he
had loaned his cell phone to his brother on January 19,
2006, and the calls made from Crawfordsville and Terre
Haute likely had been made by Arthur. In an effort to
explain why the analysts had found Mr. Curry’s DNA on
the false beard, he testified that he had visited his brother
in North Carolina, and while he was there, the brothers
had put on the costume facial hair as a joke. He further
explained that his brother had owed him a significant
amount of money from a joint business venture, and that
the red-stained money in his possession had been given to
him by Arthur as repayment for the loan. Mr. Curry also
noted that he was significantly shorter than the bank
robbers, as at least one witness had described them, and he
testified regarding his numerous recent health problems.
8 No. 07-2455
Finally, Mr. Curry acknowledged that he had not been
truthful when questioned by FBI agents regarding the red-
stained money, but he explained that this was because
he had been afraid and did not want to implicate his
brother in the bank robberies.
During Mr. Curry’s testimony, the Government inter-
rupted him each time he began to testify about his conver-
sations and interactions with his brother Arthur. Each time,
the Government objected to his testimony on the ground
that it would be inadmissible hearsay. The court sustained
the objections and prohibited Mr. Curry from testifying
about conversations that he had held with his brother.
In rebuttal, the Government presented the testimony of
one of the investigators who had interviewed Mr. Curry.
The witness explained that Mr. Curry had told him a very
different story at the time of his initial interview. The
officer also pointed out numerous statements in Mr.
Curry’s trial testimony that contradicted the statements
that had been given to him initially.
Shortly after the Government’s rebuttal, the court
received a question from one of the jurors. Entitled
“hearsay,” it asked: “Why do some witnesses get to tell the
Court what someone else said, like tellers can say what
another teller said, but some witnesses can’t say what
another person says, like the defendant couldn’t say what
his brother said?” Tr.IV at 480.
The next morning, before closing statements, the district
judge notified the attorneys that he was going to answer
the juror’s question in front of the entire jury because he
thought that it evidenced a potential mistrust of the court
or of the system. He then addressed the jury:
No. 07-2455 9
So I got a question from one of you today, and I want
to address it. And I want to address it because one of
the reasons – one of the things I usually say during the
course of the voir dire, or at some time or another
during the course of the case, there is nothing magic
about this process that we are involved in. The idea
is that people come and tell you what they know.
People don’t come in and tell you what someone else
knows. They tell you what they know.
And so the question that I got in this case from one
of you is this question: “Hearsay. Why do some wit-
nesses get to tell the Court what someone else said, like
tellers can say what another teller said, but some
witnesses can’t say what another person says, like the
defendant couldn’t say what his brother said?”
Now, under the general rubric, the general statement,
hearsay—under the word “hearsay” there are a lot of
things that can happen. But, as I said, we generally
want someone to come in and tell what they know and
not what someone else told them. That is generally
what we are talking about.
The classic definition in the rule book is that hearsay is
a statement other than one made by the declarant; that
is, other than one made by the witness, while testifying
at the trial or hearing offered to prove the truth of the
matter asserted.
And the best example of that is if you have got two
kids and one of them, you don’t know which one, took
the peanut butter out of your kitchen and you have got
the two kids standing there and the one kid said,
10 No. 07-2455
“Well, he took it.” Can you rely on that as a trustwor-
thy statement? No.
And the whole notion about hearsay is trustworthi-
ness. That is, we get what the person knew, not what
someone else who isn’t going to appear knows. It is
what that person knows. Those are the general topics.
Specifically in this case we heard from tellers. We
heard from tellers telling what each one of them said.
But we also heard from the other teller. So we have that
trustworthiness.
And it is still up to you to decide what happens. But it
is admissible so that you can consider it. And it is
thought to be trustworthy enough for you to consider
because we heard from those people.
Now, the nature of their conversation is different too.
We don’t want something that someone else said
outside of the courtroom and that the witness would
testify to offer for the truth or falsity of it, such as he
stole – he took the peanut butter. That we don’t want.
Now, it is all right for someone to say, “Joe told me to
go to Cleveland. That is why I went to Cleveland.”
That really is a statement outside, but it is not offered
for the truth of anything other than the guy said you
should go to Cleveland.
There are 18 listed exceptions to the hearsay rule, and
I have to know those and they have to know those.
And we do our best to apply those. And we do it – I do
it from almost 29 years of experience as being a trial
judge and doing it. That is how I do it.
No. 07-2455 11
So I could see - and sometimes I’ll stop in the middle of
that because I can see the jurors will be wondering why
in the world would you allow this in and you don’t
allow that in. So it is a perfectly good question. Noth-
ing wrong with asking this question, particularly in
this case when some hearsay objections have been
sustained and some have been overruled. Perfectly
alright for you to wonder about that.
So does that clear it up for you? Do you understand
that any better, you think?
Then the other question is, are you so concerned about
hearsay and the Court’s ruling on it and the way we
have handled it in this case that you think the trial is
unfair? Anybody feel that way?
No.
Everybody okay to continue?
Tr.IV at 488-91.
Immediately after the judge finished his discussion of
hearsay, defense counsel requested a sidebar. He submit-
ted that the judge, in his discussion of hearsay, improperly
had expressed his opinion regarding the credibility and
trustworthiness of the witnesses at trial. Even more
problematic, counsel suggested, was the judge’s example
of the quintessential untrustworthy hearsay testimony:
Two brothers standing in the kitchen, each accusing the
other of stealing the peanut butter. This example, he noted,
was dangerously close to Mr. Curry’s own defense at
trial—that his brother had robbed the bank, not him.
12 No. 07-2455
Defense counsel then moved for a mistrial. The district
court acknowledged the problem, stating: “That is the last
thing I wanted to do. I hope I didn’t really do that.” Tr.IV
at 492. After considering the defendant’s argument,
however, the court responded: “It is a reasonable request.
I’m going to deny it.” Id. Instead, the court decided to give
the jury a limiting instruction. Accordingly, upon their
return to open court, the district court remarked:
[A]ny comment that I make or anything that I say is
not designed to tell you how to come out in this case.
I’m telling you how hearsay works as best I can to
answer your question. I’m not telling you who to
believe and who to disbelieve in this case. The fact that
it comes in just means it has reached a relative stan-
dard and doesn’t mean that you have to do one thing
or another. You understand that?
This is your decision and not mine, and you are to
decide who is credible and who isn’t. I don’t tell you
who is credible and who isn’t, but you decide what is
credible and what isn’t from what you hear and from
whatever evidence is allowed in this case. There is a
relative standard of trustworthiness that must be met
before you hear it, but you are the ultimate decider on
what is and what isn’t and how the case comes out.
You see that?
I’m a little concerned that you think I think this case
ought to come out one way or another, and I don’t.
Does anybody feel I have said that or thought that in
this case?
No. 07-2455 13
I see all these no’s.
Then I think we are ready to proceed, counsel.
Tr.IV at 493. Counsel then made their closing arguments,
instructions were given, and the case was submitted to the
jury. On March 8, 2007, the jury returned a verdict, finding
Mr. Curry guilty on all counts. On June 8, the court sen-
tenced Mr. Curry to 1,071 months’ imprisonment, five
years of supervised release and restitution in the amount
of $1,052,337.65. Mr. Curry timely appealed his conviction.
II
DISCUSSION
A.
We review for abuse of discretion the district court’s
decision to answer a question from the jury, as well as the
language used in its response. United States v. Hewlett, 453
F.3d 876, 880 (7th Cir. 2006); United States v. Young, 316 F.3d
649, 661 (7th Cir. 2002). Additionally, because the trial
court “is in the best position to determine the seriousness
of the incident in question, particularly as it relates to what
has transpired in the course of the trial,” we review the
court’s denial of a motion for mistrial for an abuse of
discretion. United States v. Danford, 435 F.3d 682, 686 (7th
Cir. 2006). The district court has substantial discretion
over whether to issue a curative instruction, rather than
grant a mistrial, so long as the curative instruction ade-
quately addresses the issue raised. United States v. Martin,
189 F.3d 547, 555 (7th Cir. 1999); United States v. Lomeli, 76
14 No. 07-2455
F.3d 146, 149 (7th Cir. 1996). The ultimate inquiry is
whether the defendant was deprived of a fair trial. Danford,
435 F.3d at 686.
We have cautioned that “trial judges wield substantial
influence over juries,” and that a judge should take special
care not to indicate his beliefs about a witness’ honesty,
“especially when a criminal defendant testifies on his own
behalf.” Martin, 189 F.3d at 553. Mr. Curry contends that
the district court’s statements regarding hearsay reason-
ably could have been interpreted by the jury as a com-
ment on the trustworthiness of the witnesses and/or the
credibility of the defense. Accordingly, Mr. Curry submits,
the trial judge’s statements regarding hearsay improperly
influenced the jury and deprived him of a fair trial. See
United States v. Verser, 916 F.2d 1268, 1272-73 (7th Cir. 1990)
(noting that the court’s duty to avoid giving an “impres-
sion to the jury that the judge believes one version of
the evidence and disbelieves or doubts another” is
“[f]undamental to the right to a fair trial”). We evaluate
this claim using a two-part inquiry: (1) “whether the
judge in fact conveyed a bias regarding the defendant’s
dishonesty or guilt”; and (2) “whether the complaining
party has shown serious prejudice resulting from the
district court’s comments or questions.” United States v.
McCray, 437 F.3d 639, 643 (7th Cir. 2006); see also Martin,
189 F.3d at 553.
We address first whether the district court’s comments
regarding hearsay in fact conveyed a bias against the
defendant. During Mr. Curry’s testimony, the district
court sustained a number of the Government’s hearsay
No. 07-2455 15
objections, apparently precipitating the juror’s question
regarding hearsay. In response to the juror’s question, the
court gave an explanation of hearsay that was lengthy,
confusing and, at times, incorrect.1 Mr. Curry submits that
the court’s explanation served only to suggest that Mr.
Curry had been barred from testifying about his conversa-
tions with his brother because that type of testimony
was not “trustworthy.” See Tr.IV at 489-91 (using some
iteration of the word “trustworthy” six different times).
Even more damaging, Mr. Curry contends, was the
judge’s primary example of inadmissible hearsay, in which
one child accused of stealing peanut butter from his
mother’s kitchen denied responsibility and implicated his
sibling instead. Mr. Curry contends that the court’s state-
ment could be construed as a suggestion that the “he did
it, not me” defense is the utmost example of an untrust-
worthy statement—and, therefore, it is barred by the
hearsay rules. Unfortunately, however, “he did it, not me”
also happened to be quite similar to Mr. Curry’s defense.
1
In an effort to illustrate hearsay testimony, the district court
provided the following hypothetical example: “And the best
example of [hearsay] is if you have got two kids and one of
them, you don’t know which one, took the peanut butter out of
your kitchen and you have got the two kids standing there
and the one kid said, ‘Well, he took it.’ Can you rely on that as
a trustworthy statement? No.” Tr.IV at 489. This example is not,
in fact, illustrative of hearsay. The child in this example was not
testifying about an out of “court” statement; he merely asserted
directly to the “court” his belief that his brother, not him, had
stolen the peanut butter. See Fed. R. Evid. 801(c) (defining
hearsay).
16 No. 07-2455
The Government does not dispute that the district court’s
statements reasonably could be interpreted as a state-
ment against the credibility of the defendant. Instead, it
contends that the district court properly exercised its
substantial discretion in deciding not to grant the defen-
dant’s motion for a mistrial. The Government emphasizes
that, immediately after answering the juror’s question, the
district court gave a lengthy limiting instruction in which
it explained that it was not expressing a view on the
credibility of the defendant or the defense. See Tr.IV at 493
(noting that the jury is the sole arbiter of facts and that the
court did not intend to express an opinion on the credibil-
ity of the witnesses in its discussion of hearsay). Addition-
ally, the Government notes, the court advised the jury on
numerous occasions that the jury is the sole arbiter of
credibility and that it should not be influenced by state-
ments from the court or from attorneys. See R.42 at 2 (the
jury should not be influenced by objections of counsel);
R.42 at 4 (the jury is the sole judge of the credibility of
witnesses); R.42 at 29 (neither by the instructions nor by
any other remark did the court mean to express any
opinion as to the facts or the verdict that should be
reached).
As we often have noted, the district court is in the best
position to evaluate the effect that an error may have on
the overall course of the proceedings, as well as whether a
limiting instruction can cure any potential prejudice.
Danford, 435 F.3d at 686. Accordingly, trial judges have
broad discretion in deciding to give a cautionary instruc-
tion rather than to declare a mistrial. Id.; Martin, 189 F.3d
at 555. This court repeatedly has held that “jurors are
No. 07-2455 17
presumed to follow limiting and curative instructions
unless the matter improperly before them is so powerfully
incriminating that they cannot reasonably be expected
to put it out of their minds.” Danford, 435 F.3d at 687
(internal quotation marks omitted); see also McCray, 437
F.3d at 644 (finding that a similar instruction reduced the
risk of prejudice from the court’s decision to question
witnesses itself); Martin, 189 F.3d at 555 (same).
Although we think that it is a close question, we do not
believe that this is the type of situation in which a curative
instruction would be so ineffective that the failure to
declare a mistrial would be an abuse of discretion. “The
district court’s comments must be evaluated in the context
of the course of the trial,” Verser, 916 F.2d at 1273, and
the judge’s behavior throughout trial showed no hint of
bias. His comments were inadvertent, isolated and ambigu-
ous. See id. Furthermore, the district judge, later recogniz-
ing the potential for his statement to be misinterpreted,
offered numerous detailed cautionary instructions to the
jury in order to avoid any ambiguity. See United States v.
Peters, 791 F.2d 1270, 1286 (7th Cir. 1986) (noting that “the
trial judge’s comments to the jury were ill-advised . . . at
best vague, unclear, and possibly confusing for the jury,”
but ultimately concluding that “any confusion caused by
the comments was cured by the court’s customary and
complete final instructions to the jury about its role and
about the law”) (superceded on other grounds, as stated in
United States v. Guerrero, 894 F.2d 261, 267 (7th Cir. 1990)).
The district judge, unlike us, was present to observe the
jury’s reaction; he therefore was in the best position to
judge the effect that his comments had on the jury. We
18 No. 07-2455
cannot say here that his decision not to declare a mistrial
was an abuse of discretion.2
B.
Mr. Curry next contends that the search warrants issued
in this case were not supported by probable cause and that
the evidence recovered in the search undertaken on the
authority of the warrants therefore must be suppressed.
“On the mixed question whether the facts add up to
probable cause, we give no weight to the district judge’s
decision,” however, we give “‘great deference’ to the
conclusion of the judge who initially issued the warrant.”
United States v. Garcia, 528 F.3d 481, 485 (7th Cir. 2008)
(quoting United States v. McIntire, 516 F.3d 576, 578 (7th
Cir. 2008)). When reviewing an issuing judge’s initial
probable cause determination, we defer to his initial
2
Alternatively, the Government contends that we should not
reverse the conviction here because any error in this case was
harmless given the overwhelming evidence of Mr. Curry’s guilt.
In considering whether an error was harmless, we have noted
that “[t]he central question is whether it appears beyond a
reasonable doubt that the error complained of did not con-
tribute to the verdict obtained.” United States v. Williams, 493
F.3d 763 (7th Cir. 2007) (internal quotations omitted). If an error
clearly did not affect the jury’s decision, we shall not reverse a
conviction. The Government asserts that such is the case here.
Because we conclude that the court did not err in denying
Mr. Curry’s motion for a mistrial, we need not address the
Government’s harmless error contention.
No. 07-2455 19
determination if there is “substantial evidence in the
record” that supports his decision. United States v. Koerth,
312 F.3d 862, 865 (7th Cir. 2002). “[T]he task of the issuing
magistrate is simply to make a practical, commonsense
decision whether, given all the circumstances set forth in
the affidavit before him, . . . there is a fair probability that
contraband or evidence of a crime will be found in a
particular place.” Id. at 866 (quotation marks omitted).
“A search warrant affidavit establishes probable cause
when, based on the totality of the circumstances, it sets
forth sufficient evidence to induce a reasonably prudent
person to believe that a search will uncover evidence of a
crime.” United States v. Mykytiuk, 402 F.3d 773, 776 (7th
Cir. 2005) (internal quotation marks omitted). The Gov-
ernment need not provide direct evidence that fruits of the
crime or other evidence will be found in the location
specified: The magistrate judge “is entitled to draw
reasonable inferences about where evidence is likely to
be kept,” and he “need only conclude that it would be
reasonable to seek the evidence in the place indicated in
the affidavit.” United States v. Sleet, 54 F.3d 303, 306 (7th
Cir. 1995) (quotation marks omitted). Nevertheless, the
judge may not rely solely upon “conclusory allegations” or
a “ ‘bare bones’ affidavit” when issuing a warrant. Koerth,
312 F.3d at 867.
On February 10, 2006, FBI Special Agent Joseph D. Rock
presented an application for a search warrant to a magis-
trate judge in the Southern District of Indiana, requesting
a warrant to search Mr. Curry’s residence and a warrant to
search his storage locker. The application was supported
20 No. 07-2455
by an affidavit that noted, inter alia, that: (1) witnesses
to the crime had given descriptions of the robbers consis-
tent with Mr. Curry’s appearance; (2) the tellers in at least
one robbery had given the subjects red dye packs, which
they had seen explode as the individuals fled the scene;
(3) Mr. Curry had been observed on numerous occasions
passing or attempting to pass large amounts of currency
stained with red dye at other banks and at casinos; (4) the
red dye on the cash spent by Mr. Curry and collected by
banks and a casino was consistent with the dye emitted by
dye packs during bank robberies; (5) a car used in con-
nection with one of the robberies had been reported stolen
in Crawfordsville, Indiana, and Mr. Curry had checked out
of a motel room there the morning of the theft; (6) Mr.
Curry was observed going to a storage facility where he
had access to a storage unit rented in his name; (7) while at
the storage facility, he was seen taking a box from the
storage unit and putting it in his truck; (8) on another
occasion, Mr. Curry was observed leaving his home and
going to the storage unit, where he retrieved two large
boxes, and later taking the boxes into his residence; and
(9) Mr. Curry was observed placing items in a trash
dumpster, where law enforcement officers later discovered
a black trash bag covered in a red dye consistent with the
dye in the bank’s dye packs.
From these and other details outlined in a 15-page
affidavit, the magistrate judge concluded that the Govern-
ment had probable cause to believe that Mr. Curry was
involved in the robberies and that officers were reasonably
likely to recover evidence or fruits of the crime in his
residence or storage locker. Accordingly, he issued war-
No. 07-2455 21
rants to search the residence and storage unit for the items
outlined in the affidavit. We agree with the issuing judge
that the evidence presented in the affidavit clearly sup-
ported a determination of probable cause.
Moreover, even if the search warrants had not been
supported by probable cause, the evidence recovered in
the subsequent searches is not necessarily subject to
suppression. Sleet, 54 F.3d at 307. Evidence collected
pursuant to a facially valid search warrant issued by a
neutral, detached magistrate is nevertheless admissible if
the officers relied on the warrant in good faith. Mykytiuk,
402 F.3d at 777. An officer’s decision to obtain a warrant is
prima facie evidence that he acted in good faith. Id.; Koerth,
312 F.3d at 868. Mr. Curry can rebut this presumption of
good faith “only by showing that the issuing judge aban-
doned his role as a neutral and detached arbiter, that the
officers were dishonest or reckless in preparing the sup-
porting affidavit, or that the affidavit was so lacking in
probable cause that no officer could have relied on it.”
Mykytiuk, 402 F.3d at 777; see also Koerth, 312 F.3d at 868.
Mr. Curry does not suggest that the issuing judge
abandoned his judicial role; nor does he suggest that the
FBI acted with recklessness or dishonesty in preparing the
affidavit. Therefore, he must show that the affidavit was so
lacking in probable cause that no reasonable officer could
have relied on the warrants in executing a search. How-
ever, “in the ordinary case, a law enforcement officer
‘cannot be expected to question’ the magistrate’s probable
cause determination.” Sleet, 54 F.3d at 307 (quoting Illinois
v. Krull, 480 U.S. 340, 349 (1987)). The officers here would
22 No. 07-2455
have had no reason to question the warrants because, as
we have described, the affidavit referred to significant
circumstantial evidence that indicated that Mr. Curry may
have been the perpetrator of the robberies under investiga-
tion, and that the fruits and instrumentalities of that
robbery may be located in his home or in his storage
locker. The officers relied on the warrants and executed
the search in good faith; therefore, the district court did not
err in refusing to grant Mr. Curry’s motion to suppress. See
United States v. Dickerson, 975 F.2d 1245, 1250 (7th Cir.
1992).
C.
In its final instructions to the jury, the district court
included a statement regarding a defendant’s liability for
aiding and abetting a crime. The court used the Seventh
Circuit pattern jury instruction for aiding and abetting,3
which states:
Any person who knowingly aids, counsels, commands,
induces, procures, or authorizes the commission of an
offense may be found guilty of that offense. That
person must knowingly associate with the criminal
activity, participate in the activity, and try to make
it succeed.
If a defendant knowingly caused the acts of another,
the defendant is responsible for those acts as though
he personally committed them.
3
Fed. Crim. Jury Instruction of the Seventh Cir., Instruction
No. 5.06, at 78 (West 1999).
No. 07-2455 23
R.42, Instruction 20. Mr. Curry objected to the instruction
in conference, contending that the record did not support
an aiding and abetting instruction. Tr.III at 470. The
Government submitted that the instruction was necessary
because “there could be an argument about whether or not
both people were armed in all the robberies.” Tr.III at 470-
71. The district court overruled the objection, noting that it
was an accurate statement of the law and informing
defense counsel that, if he was worried about a potential
misapprehension caused by the instruction, he could
explain it to the jury in his closing statements. Tr.III at 471.
Defense counsel declined to do so.
On appeal, Mr. Curry contends that the jury instruction
was incomplete and therefore misleading. In his view, the
jury may have convicted him of aiding and abetting the
crime, based solely on evidence that he allowed his brother
Arthur the use of his storage locker and attempted to
exchange some of the red-stained money after the commis-
sion of the crime. Such actions, however, would not
support a conviction under 18 U.S.C. § 2133 or 18 U.S.C.
§ 924(c). See Woods, 148 F.3d at 849.
Our review of jury instructions is limited. Woods, 148
F.3d at 849. “We seek only to determine if the instructions
as a whole were sufficient to inform the jury correctly of
the applicable law.” Id. “If the instructions are adequately
supported by the record and are fair and accurate summa-
ries of the law, the instructions will not be disturbed on
appeal.” United States v. Lanzotti, 205 F.3d 951, 956 (7th Cir.
2000). We reverse a conviction only if it appears both
that the jury was misled and that the instructions preju-
diced the defendant. Woods, 148 F.3d at 849.
24 No. 07-2455
Mr. Curry does not contend that the instruction given
was inaccurate; he merely suggests that it was incomplete.
In his view, the jury could have convicted him based on a
misapprehension that his efforts to conceal the crime after-
the-fact constituted “aiding and abetting.” To be convicted
of aiding and abetting, however, a violation of either 18
U.S.C. § 2133 or 18 U.S.C. § 924(c), a defendant must have
facilitated or encouraged the underlying crime, not
merely the subsequent cover-up. See Woods, 148 F.3d at 848.
Because the jury was not specifically informed of this rule,
he contends, there is a chance that the jury improperly
convicted him based on his post-crime actions alone.
The jury instruction, however, was a correct statement
of the law. As the Government explains in its brief, the
instruction also was necessary because it was unclear to
some of the witness bank tellers whether both robbers had
been armed. Therefore, a jury may have concluded that
there was insufficient evidence that Mr. Curry had bran-
dished a firearm during each robbery. Whether or not
Mr. Curry himself brandished a firearm, however, he
certainly facilitated the use of the firearm by participating
in the robbery and “mak[ing] it easier for another to carry
a firearm through division of labor.” Woods, 148 F.3d at 848.
Accordingly, the district court did not err when it con-
cluded that the aiding and abetting instruction was
necessary to prevent acquittal on this ground.
If defense counsel was concerned about a potential
misapprehension regarding the law of aiding and abetting,
he had the opportunity to propose additional instructions
or to provide the jury with additional information in his
No. 07-2455 25
closing remarks. Despite the district court’s invitation,
however, he declined to do so. Accordingly, we must
conclude that the jury instructions given in this case
did not mislead the jury or prejudice the defendant.
Conclusion
For the foregoing reasons, we affirm the judgment of
the district court.
A FFIRMED
8-15-08