United States v. Duprece Jett ( 2018 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 17-2051, 17-2052, and 17-2060
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DUPRECE JETT, EARL WALKER,
and DAMION MCKISSICK,
Defendants-Appellants.
____________________
Appeals from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:16-cr-00001-TWP-TAB — Tanya Walton Pratt, Judge.
____________________
ARGUED SEPTEMBER 5, 2018 — DECIDED NOVEMBER 7, 2018
____________________
Before KANNE, SYKES, and ST. EVE, Circuit Judges.
ST. EVE, Circuit Judge. Two armed men robbed three cash-
and-check stores in the Indianapolis area. The heists were not
especially sophisticated, but they went viral over the robbers’
1970s-themed disguises. That attention drew an anonymous
tip, which led law enforcement to Duprece Jett and Damion
McKissick, as well as a third man, Earl Walker, who officers
believed was involved in a planned fourth robbery.
2 Nos. 17-2051, 17-2052, and 17-2060
The government charged all three men with conspiracy in
violation of the Hobbs Act and attempted bank robbery. A
jury convicted them on both counts. Jett, McKissick, and
Walker now appeal, citing a host of trial errors they submit
require acquittal or a new trial. We see only one such error,
with respect to the sufficiency of the evidence on the at-
tempted-robbery count. We reverse and remand with instruc-
tions that the district court enter a judgment of acquittal on
that count and resentence the defendants. Otherwise, we af-
firm.
I. Background
On September 15, 2015, two men, disguised and armed,
robbed an Advance America Check Cashing store in Indian-
apolis. A few days later, on September 19, 2015, the same men
hit an Indiana Members Credit Union branch in Indianapolis.
Two months later, on November 19, 2015, they robbed a dif-
ferent Credit Union branch, located in Avon, Indiana. Each
time, the men arrived and fled in a recently stolen vehicle, or,
as it is known, a “switch car.”
A state-federal task force investigated the string of rob-
beries. It fielded an anonymous tip claiming one of the two
men was Damion McKissick. The task force began surveilling
McKissick, which led it to Duprece Jett. While observing Jett
and McKissick on the morning of December 12, 2015, officers
observed four cars at Jett’s residence. Two cars left the resi-
dence and headed to a public library. At the library one driver
exited his car and entered a Buick LeSabre, which was re-
cently reported stolen. All three cars drove away together.
The three cars made several stops: a hotel, Jett’s residence,
a gas station, and an apartment-complex parking lot. The
Nos. 17-2051, 17-2052, and 17-2060 3
LeSabre then left the parking lot alone, and it drove near sev-
eral businesses—including an Indiana Members Credit Union
branch—before returning. Officers suspected that a fourth
robbery was imminent. After the LeSabre left the parking lot
a second time, again alone, officers attempted to pull it over.
The LeSabre sped off and the officers gave chase. After ex-
ceeding 100 miles per hour, weaving through streets, forcing
vehicles off the road, and driving into oncoming traffic, the
LeSabre lost control and slid into a ditch. Its driver, Earl
Walker, and passenger, McKissick, attempted to run on foot,
but officers apprehended them. Officers searched the LeSabre
and found a ski mask, two pairs of gloves, a backpack, a duffle
bag, and an airsoft pistol.
The government charged Jett, McKissick, and Walker with
two counts each. Count 1 charged conspiracy in violation of
the Hobbs Act. 18 U.S.C. § 1951(a). Count 2 charged at-
tempted bank robbery “by force and violence, or by intimida-
tion.” Id. § 2113(a).
A. Pretrial Proceedings
Before trial, Walker moved under Federal Rule of Crimi-
nal Procedure 14(a) for a severance. He argued that a joint trial
with Jett and McKissick would prejudice him. In addition to
the optics of being tried alongside the men accused of com-
mitting the three armed robberies, Walker claimed that a
video recording taken of McKissick at the stationhouse would
unfairly inculpate him.
Specifically, at the stationhouse just after the car chase, law
enforcement placed McKissick and Walker in adjacent inter-
rogation rooms. Walker invoked his Fifth Amendment rights;
McKissick gave a recorded statement. While McKissick
4 Nos. 17-2051, 17-2052, and 17-2060
awaited questioning, and while being recorded, he attempted
to communicate with Walker. He shouted:
Hey Earl! Earl! Nothing … joyriding … fleeing.
Hey Earl! Hey Bro
They jumped the gun. I say they jumped the gun. We ain’t
do shit. They didn’t give us a chance. So—hey—uhh.
Walker argued that these statements incriminated him. He
also contended that admitting the statements would pit his
Sixth Amendment right to confrontation against McKissick’s
Fifth Amendment right not to testify, which Bruton v. United
States, 391 U.S. 123 (1968), generally prohibits.
The district judge denied Walker’s motion. She ruled that
a joint trial itself would not unfairly prejudice Walker, and she
explained that Walker’s Bruton concerns were premature: the
statements did not appear “powerfully incriminating,” the
government had not moved to admit the statements, and,
even if it did, the government could redact the statements to
avoid implicating Walker. Following suit, the government
later moved in limine to admit a scrubbed video recording of
the statements with Walker’s name omitted. The district
judge granted that motion and admitted the statements under
Federal Rule of Evidence 801(d)(2)(A) as statements offered
against a party-opponent.
Just before trial began, the parties exchanged witness lists.
The government’s list included two FBI Special Agents—
Adam Vail and Brian Guy—but it did not indicate whether
those witnesses (or any witnesses) would testify in a lay ca-
pacity, an expert one, or both. This procedure was in line with
Nos. 17-2051, 17-2052, and 17-2060 5
the district judge’s former courtroom rule that she would not
designate a witness as an expert. 1
B. The Trial and Sentencing
The jury trial began on February 6, 2017, and lasted five
days. The government elicited testimony from several em-
ployees of the check-and-cash stores and FBI agents, as well
as admitted into evidence surveillance footage from the three
robberies.
As for the September 15 robbery, an Advance America
employee testified that two men entered wearing sunglasses,
wigs, and construction jackets. One man was heavy set and
the other was thin, according to the witness. Surveillance foot-
age confirmed this description. The heavier man was dressed
as funk legend Rick James, with a braided, beaded wig and
flashy sunglasses; the thinner man was dressed, seemingly, as
Youngblood Priest from the 1972 hit film Super Fly, with a
long-haired wig, mustache, and oversized sunglasses of his
own. Both men wore bright orange construction vests. The
government called a man who worked with Jett at a logistics
company to testify that the construction jackets the men wore
were identical to the ones issued to the company’s employees.
An FBI agent, Kevin Horan, testified that he analyzed Jett’s
and McKissick’s cell-phone data from September 15, which
indicated that both men were in the area of the Advance
America around the time of the robbery. No eyewitness,
1
The district judge appears to have changed this rule. It now states
“the Court will designate and declare whether a witness is an expert.” We
commend this change, for reasons we explain below. See also United States
v. Tingle, 880 F.3d 850, 854 (7th Cir. 2018).
6 Nos. 17-2051, 17-2052, and 17-2060
however, could identify Jett or McKissick as the robbers. The
men made off with $2,751.
Regarding the September 19 robbery, a Credit Union
branch manager testified that, after the two men entered, one
hopped over the teller desk. He pointed a gun and told eve-
ryone to get down. She observed that the men wore hats and
wigs, but she otherwise did not “get a good look at” the men.
Surveillance footage again showed the men dressed as Rick
James and Youngblood Priest. Another employee testified
that he saw one of the men grab a Credit Union employee by
the neck and threaten him. He, too, could not identify Jett or
McKissick as the robbers. None of the government’s eyewit-
nesses could.
Jett’s counsel tried to highlight this point during his cross-
examination of Agent Guy. He asked whether it was true that
the investigation had “uncovered” no one who could identify
either Jett or McKissick as the robbers. Agent Guy disagreed,
but he did not elaborate. Before redirect, the government re-
quested a sidebar. It argued that Jett’s questioning had
opened the door for Agent Guy to identify Jett as one of the
two men in the surveillance footage based on Agent Guy’s in-
teraction with Jett on December 14, 2015, when he helped ex-
ecute a search warrant. The government also contended that
Agent Guy’s identification was admissible under Federal
Rule of Evidence 701, as he could testify that Jett’s appearance
had changed since late 2015 by losing weight. The district
judge agreed on both counts. She allowed the government to
ask about whether Agent Guy—but not any other law-en-
forcement agents—had identified Jett as the robber based on
the surveillance footage and testify to Jett’s change in appear-
ance. Back on the stand, Agent Guy testified that Jett
Nos. 17-2051, 17-2052, and 17-2060 7
appeared to have lost weight and that, based on his earlier
interaction with Jett, Jett was the robber pictured on tape with
the beaded-hair wig.
The government put on more evidence regarding the Sep-
tember 19 robbery. A fingerprint examiner testified that she
found a fingerprint on the Credit Union’s exit door that
matched Jett’s, although she testified that she could not iden-
tify when the print was left. This concession mattered, since
Jett banked at this Credit Union. Agent Horan testified that
Jett’s and McKissick’s cell-phone data showed that both men
were in the area of the Credit Union around the time of the
September 19 robbery. This time, the men stole $19,001.61.
As for the final robbery, on November 19, an employee of
the Avon Credit Union testified that two men with ski masks
ran into the store. One of the masked men jumped over the
teller desk. That man wore a pair of Nike Air Maxes similar
to ones later found at Jett’s residence, although law enforce-
ment could not match Jett’s shoes to a shoeprint lifted from
the teller desk. Another witness testified that one of the two
men hit an employee in the head with his gun and demanded
that she get into the vault. An employee opened the vault—
which housed a cash-dispensing machine and containers of
money—and showed McKissick how to open the containers.
McKissick, while securing the cash, set down his weapon. A
witness identified McKissick weapon’s as a 1911-style semi-
automatic airsoft pistol—which matched the pistol recovered
from the LeSabre after the December 2015 car chase. Again,
no witness could identify Jett or McKissick. Agent Horan,
however, testified once more that Jett’s and McKissick’s cell-
phone data confirmed that they were near the Credit Union
in Avon around the time of the robbery. This robbery was the
8 Nos. 17-2051, 17-2052, and 17-2060
most lucrative by far, with the robbers making off with over
$109,000.
Aside from evidence of the three robberies, the govern-
ment introduced evidence related to its surveillance of the de-
fendants in December 2015. It admitted text messages be-
tween Jett and McKissick from the night of December 11,
2015, the night before the car chase. In the exchange,
McKissick asked “when we going hunting”; Jett responded
“Giv me a tym.” Jett also messaged “where the screwdriver,”
“Ill handle the whip if u want,” and “Fenna bounce.” The gov-
ernment had Agent Vail, a case agent, interpret these text
messages to the jury, over defendants’ objections. Defense
counsel argued that Agent Vail was not a party to the conver-
sations and so he lacked personal knowledge of the texts’
meaning. Nor could he offer expert testimony, defense coun-
sel argued, because the text messages were written in English
and did not require expertise to interpret. The district judge
disagreed with the second point, noting that “looking at the
jury” some jurors may not understand what some of the terms
meant. Agent Vail told the jury, in essence, that these texts re-
flected Jett and McKissick’s plan to steal another car.
The government also introduced evidence recovered after
the car chase. The LeSabre’s steering column, like that of an
earlier-lifted car used during the robbery, had been disabled
and hotwired. The items found in the LeSabre contained the
defendants’ DNA: McKissick’s DNA was on the ski mask,
backpack, and airsoft pistol; Walker’s DNA was on the mask;
and Jett’s DNA was on the backpack. In addition, the jury saw
the scrubbed video recording of McKissick’s statements at the
stationhouse. It heard another recording, too, of McKissick’s
post-arrest phone call with his wife. During that call,
Nos. 17-2051, 17-2052, and 17-2060 9
McKissick told his wife “the mother fuckers jumped the gun.”
His wife responded, “you should have left well enough
alone.” An agent further explained that when the task force
executed a search warrant at McKissick’s residence, it found
a tire filled with a backpack, gloves, and ski mask—all items
used by the robbers—burned with accelerant in his backyard.
Agents also found a duffle bag filled with Jett’s possessions at
McKissick’s residence.
The government further admitted evidence of McKissick’s
cash usage in the fall of 2015. One witness, for example, testi-
fied that McKissick paid for a car on November 20—one day
after the robbery in Avon—with a “big wad” of cash. Other
evidence, mainly receipts, demonstrated McKissick’s heavy
cash use in this period. The government also introduced pho-
tographs from McKissick’s phone in which he boasted large
amounts of cash. McKissick countered this evidence, how-
ever, with receipts of his own. Namely, he presented evidence
of cash payments to himself for copper resales and of a late
November jackpot from a casino.
For Walker, the jury heard additional evidence from an
FBI digital-evidence forensic examiner about data extracted
from Walker’s cell phone. That data showed internet searches
for “Bank robbery Indianapolis,” “Bank robbery Indianapolis
2015,” and “rick james bank robber.”
Before the close of evidence, the parties and the district
judge discussed jury instructions. Defense counsel requested
an instruction for the Hobbs Act conspiracy charge, which
would have required the jury to find that the defendant com-
mitted an overt act to convict. Defense counsel also requested
an instruction requiring the jury to agree unanimously as to
10 Nos. 17-2051, 17-2052, and 17-2060
which overt act each defendant had committed. The district
judge rejected these requests.
The jury found each defendant guilty on both counts. The
district judge sentenced Jett and McKissick each to a total of
293 months in prison. Walker received 72 months total. This
appeal followed.
II. Discussion
Jett, McKissick, and Walker raise several challenges to pur-
ported errors in the district court, on topics including the suf-
ficiency of the evidence, jury instructions, and the admission
of certain expert and lay testimony. We address each chal-
lenge in turn.
A. Sufficiency of the Evidence on the Attempted-Robbery
Count
The defendants first argue there was insufficient evidence
to convict on Count 2, which charged them with attempted
robbery, 18 U.S.C. § 2113(a), for the events of December 12,
2015. Each defendant moved for a judgment of acquittal un-
der Federal Rule of Criminal Procedure 29(a) at the close of
trial and the district judge denied those motions. We review
those denials de novo. United States v. Kohli, 847 F.3d 483, 489
(7th Cir. 2017).
Section 2113(a) prohibits attempted robberies in two cir-
cumstances: (1) when the attempt is undertaken “by force and
violence, or by intimidation”; or (2) when it results in the de-
fendant entering or attempting to enter the targeted financial
institution’s premises. 18 U.S.C. § 2113(a). The jury in this case
received instructions focusing on the first circumstance,
which requires “actual” force or intimidation for a conviction.
United States v. Thornton, 539 F.3d 741, 748 (7th Cir. 2008). No
Nos. 17-2051, 17-2052, and 17-2060 11
such force or intimidation occurred on December 12, as the
government concedes on appeal. Law enforcement arrested
McKissick and Walker well before they had an opportunity to
approach the Credit Union they planned to rob, and Jett never
neared the Credit Union that day. (For those reasons, no con-
viction could lie under Section 2113(a)’s second circumstance
either.) The evidence was therefore insufficient to convict on
Count 2.
The only question left is the appropriate remedy. The de-
fendants argue for a judgment of acquittal on Count 2, but the
government suggests vacatur. We agree with the defendants.
The Supreme Court instructs that an “evaluation of the evi-
dence as insufficient to convict is equivalent to an acquittal
and therefore bars a second prosecution for the same offense.”
Bravo-Fernandez v. United States, 137 S. Ct. 352, 364 (2016). Be-
cause there was insufficient evidence on Count 2, a judgment
of acquittal on that count must follow.
B. Hobbs Act Conspiracy and the Overt-Act Requirement
The defendants’ second challenge is to the district judge’s
refusal to instruct the jury that Count 1, which charged them
with a conspiracy in violation of the Hobbs Act, 18 U.S.C.
§ 1951(a), required proof of an overt act in furtherance of the
conspiracy. Because the district judge’s decision stemmed
from her interpretation of the law, we review it de novo. United
States v. Dessart, 823 F.3d 395, 404 (7th Cir. 2016).
We have not yet decided whether a Hobbs Act conspiracy
requires an overt act, though we have at least twice suggested
that it does. In United States v. Tuchow, 768 F.2d 855, 869 (7th
Cir. 1985), we said that, “[i]n order to establish a conspiracy,
the government must prove that there was an agreement …
12 Nos. 17-2051, 17-2052, and 17-2060
and that an overt act was committed in furtherance of the
agreement by one of the coconspirators.” We later quoted Tu-
chow in United States v. Stodola, 953 F.2d 266, 272 (7th Cir.
1992), for the same proposition. The defendants urge us to ad-
here to Tuchow and Stodola’s formulation, but we find little
reason to do so. Those decisions mentioned the overt-act re-
quirement “without discussion,” a fact we recognized in
United States v. Corson, 579 F.3d 804, 810 n.1 (7th Cir. 2009). We
also recognized in Corson that other courts have expressly
held that a Hobbs Act conspiracy does not have an overt-act
requirement, although Corson did not require us to resolve the
question. 579 F.3d at 810 n.1 (citing cases). This case, however,
does. 2
The answer to whether a conspiracy requires an overt act
lies in the text of the statute that criminalizes the conspiracy.
United States v. Shabani, 513 U.S. 10, 13–14 (1994), teaches, first,
that “absent contrary indications, Congress intends to adopt
the common law definition of statutory terms,” and second,
that “the common law understanding of conspiracy ‘does not
make the doing of any act other than the act of conspiring it-
self a condition of liability.’” These principles draw from Nash
v. United States, 229 U.S. 373, 378 (1913), a decision which held
that, because the text of 15 U.S.C. § 1 makes the act of conspir-
ing the only condition of liability, an antitrust conspiracy un-
der that section does not need an overt act. Shabani concerned
a different conspiracy charge, one under 21 U.S.C. § 846. Ap-
plying Nash’s principles, the Court held that because Section
846’s text does not mention an overt act, and because the law
2
Before issuing this opinion, we circulated it to the full court under
Circuit Rule 40(e). No judge in active service requested to hear the case en
banc.
Nos. 17-2051, 17-2052, and 17-2060 13
does not infer an overt-act requirement from such “congres-
sional silence,” proof of a Section 846 conspiracy did not entail
proof of an overt act. Shabani, 513 U.S. at 13–14. The Shabani
Court found a comparison to the general conspiracy statute,
18 U.S.C. § 371, telling: Section 371, unlike Section 846, re-
quires that a conspirator “do any act to effect the object of the
conspiracy.” Id. at 14 (quoting 18 U.S.C. § 371). That difference
“speaks volumes,” according to the Court. Id.Whitfield v. United States, 543 U.S. 209 (2005), held similarly
with respect to a money-laundering conspiracy charged un-
der 18 U.S.C. § 1956(h). That statute, like the Sherman Act and
Section 846, does not refer to an overt act, and so the Court
ruled that one was not needed to prove a money-laundering
conspiracy. Whitfield, 543 U.S. at 214. The Court repeated the
rule of Shabani: Congress has a “formulary” and “by choosing
a text modeled on § 371, it gets an overt-act requirement; by
choosing a text modeled on the Sherman Act … it dispenses
with such a requirement.” Id.
Shabani and Whitfield dictate the conclusion that a Hobbs
Act conspiracy does not have an overt-act requirement. The
Hobbs Act reads:
Whoever in any way or degree obstructs, delays, or affects
commerce or the movement of any article or commodity in
commerce, by robbery or extortion or attempts or conspires
so to do, or commits or threatens physical violence to any
person or property in furtherance of a plan or purpose to do
anything in violation of this section shall be fined under this
title or imprisoned not more than twenty years, or both.
18 U.S.C. § 1951(a) (emphasis added). Like the Sherman Act,
Section 846, and Section 1956(h)—and unlike Section 371—the
Hobbs Act does not say that conspirators must effect an overt
14 Nos. 17-2051, 17-2052, and 17-2060
act before the conspiracy becomes punishable. Whitfield, 543
U.S. at 215. It makes the act of conspiring itself the crime. See
Shabani, 513 U.S. at 13; see also Corson, 579 F.3d at 810. We
therefore hold that an overt act is not an element of a Hobbs
Act conspiracy. In so doing, we join every other court of ap-
peals to have directly addressed the question after Shabani.
United States v. Salahuddin, 765 F.3d 329, 338 (3d Cir. 2014);
United States v. Palmer, 203 F.3d 55, 63 (1st Cir. 2000); United
States v. Pistone, 177 F.3d 957, 959–60 (11th Cir. 1999) (per cu-
riam); see also United States v. Clemente, 22 F.3d 477, 480 (2d
Cir. 1994). Only one court of appeals, the Fifth Circuit, contin-
ues to state that the Hobbs Act contains an overt-act require-
ment. See United States v. Harrell, 629 F. App’x 603, 604–05 (5th
Cir. 2015); United States v. Herrera, 466 F. App’x 409, 417 (5th
Cir. 2012) (per curiam); United States v. Box, 50 F.3d 345, 349
(5th Cir. 1995). Like us before today, however, the Fifth Cir-
cuit has not considered the effect of Shabani and Whitfield on
this formulation.
The district judge’s decision not to instruct the jury on an
overt-act requirement was proper. Because we so hold, we
need not address the defendants’ argument that the jury had
to agree unanimously to each overt act.
C. Agent Vail’s Testimony
The defendants (primarily Jett and McKissick) next con-
test the district judge’s admission of Agent Vail’s testimony
interpreting certain words in the text messages Jett and
McKissick exchanged. The government offered this part of
Agent Vail’s testimony, unlike the rest of it, as an expert opin-
ion under Federal Rule of Evidence 702. During this testi-
mony, Agent Vail explained the meaning of certain slang
terms—like “whip,” “hunting,” and “[f]enna bounce”—in
Nos. 17-2051, 17-2052, and 17-2060 15
describing messages that, according to him, reflected Jett and
McKissick’s plan to steal a switch car. We review whether a
district judge properly applied the Rule 702 framework de
novo; if she did, we review the decision to admit or exclude
expert testimony for an abuse of discretion. United States v.
Parkhurst, 865 F.3d 509, 514 (7th Cir. 2017). Even an abuse of
discretion, however, does not merit a new trial unless the er-
ror impacted the defendants’ substantial rights. Fed. R. Crim.
P. 52(a).
1. Admissibility Under Rule 702
The defendants first fault the district judge for not evalu-
ating Agent Vail’s expert testimony under Rule 702 and the
framework set forth in Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579 (1993). Rule 702 and Daubert call upon a dis-
trict judge to make “a preliminary assessment of whether the
reasoning or methodology underlying the testimony is scien-
tifically valid and of whether that reasoning or methodology
can be applied to the facts in issue.” Daubert, 509 U.S. at 592–
93. The defendants are correct that the district judge did not,
by and large, make this assessment. But she had good reason:
the defendants did not ask her to. District judges are not re-
quired to undertake each step of the Rule 702 analysis when
no party specifically requests it, and they generally do not err
in admitting expert testimony as a result. United States v.
Christian, 673 F.3d 702, 711 n.1 (7th Cir. 2012); United States v.
Moore, 521 F.3d 681, 685 (7th Cir. 2008).
The defendants essentially concede that they failed to re-
quest that the judge engage in the Rule 702 analysis. Yet they
offer a reason of their own: any such request would have been
futile, they submit, in light of the district judge’s former rule
that she would not designate and declare expert witnesses as
16 Nos. 17-2051, 17-2052, and 17-2060
such. That is no excuse. The judge’s former rule said that she
would not designate or declare an expert; it did not say that
she would not undertake the Rule 702 analysis to determine
the admissibility of expert testimony. Even if it had, futility
does not generally free a litigant from his obligation to raise
an objection in the first instance. See Divane v. Krull Elec. Co.,
194 F.3d 845, 849 (7th Cir. 1999).
The defendants did, however, object to Agent Vail’s testi-
mony on other grounds that they raise on appeal. For one,
they contend that the interpretation of the slang terms Jett and
McKissick used is not a subject for expert testimony. These
words were within the jury’s comprehension, they argue.
“Whip,” for example, is commonly understood as a car, and
“fenna bounce” is known slang for “going to leave.” Admit-
ting Agent Vail’s interpretation of these and other terms
served only to give “expert gloss” to the government’s narra-
tion of the text-message exchange, according to the defend-
ants.
Courts may properly admit a case agent’s expert testi-
mony to help juries interpret the “key words” or “code
words” used by individuals or groups that the agent investi-
gates. See, e.g., Parkhurst, 865 F.3d at 516; United States v. Ce-
ballos, 302 F.3d 679, 687–88 (7th Cir. 2002). We caution, how-
ever, against conflating commonly used slang or vernacular
with the code words of a criminal milieu. Once qualified, case
agents may explain terms with which their professional expe-
rience has given them particular familiarity; they may not
give interpretation to terms with which they are no more fa-
miliar than others. Those terms are properly left for the jury
to evaluate on its own. See United States v. York, 572 F.3d 415,
Nos. 17-2051, 17-2052, and 17-2060 17
423 (7th Cir. 2009); United States v. de Soto, 885 F.2d 354, 361
(7th Cir. 1989).
In this case, the experienced district judge made a specific
finding in explaining that the jury before her may not have
known or understood the slang terms Jett and McKissick
used. “[L]ooking at [the] jury,” she concluded, “they may not
know” and “may not understand” what the terms meant. Dis-
trict judges are best positioned to make assessments like that,
and so we cannot say it was an abuse of discretion to conclude
that expert interpretation of the terms was helpful and the ap-
propriate subject of expert opinion. Further, in eliciting this
expert opinion, the government laid adequate foundation. See
Christian, 673 F.3d at 713; York, 572 F.3d at 425. Agent Vail tes-
tified through his training and experience he knew of “slang
terms that are used by individuals.” In context, this meant
that he, as a violent-crime investigator, was familiar with
slang words used by the criminals he investigates.
Even if the district judge abused her discretion in admit-
ting this limited expert testimony, it was harmless error. “The
test for harmless error is whether, in the mind of the average
juror, the prosecution’s case would have been significantly
less persuasive had the improper evidence been excluded.”
United States v. Stewart, 902 F.3d 664, 683 (7th Cir. 2018) (cita-
tion omitted). The evidence against Jett and McKissick on
Count 1 was plenty persuasive without Agent Vail’s interpre-
tation of the text messages. The government needed only to
prove that they conspired to commit bank robbery, and it ad-
mitted surveillance footage that a jury could easily conclude
showed Jett and McKissick actually committing the bank rob-
beries together. Cell-phone data further confirmed that both
men were in the area of the check-and-cash locations around
18 Nos. 17-2051, 17-2052, and 17-2060
the times they were robbed. The government also introduced
evidence of burned items matching what the robbers used at
McKissick’s home and McKissick’s incriminating statements
at the stationhouse.
What is more, Agent Vail’s testimony was limited and de-
fense counsel had the opportunity to cross-examine him on
his qualifications to opine on slang terms (though they chose
not to), a fact the district judge made clear in admitting his
testimony. Still more, the defendants have identified nothing
wrong, misleading, or disputable in Agent Vail’s testimony.
In fact, he interpreted the slang terms—“whip” as “automo-
bile,” for example—in the same way the defendants suggest
they are commonly understood. We therefore find no reversi-
ble error in the admission of Agent Vail’s testimony as expert
opinion.
2. Admissibility as Dual-Role Testimony
The defendants make a related argument about Agent
Vail’s testimony. Even if Agent Vail’s testimony was proper
under Rule 702, they argue, it was improperly intertwined
with his lay testimony.
We have allowed the practice of permitting case agents to
testify as both fact and expert witnesses. See Parkhurst, 865
F.3d at 519; United States v. Lightfoot, 224 F.3d 586, 589 (7th Cir.
2013); but see United States v. Garrett, 757 F.3d 560, 569 (7th Cir.
2014) (cautioning against the practice). At the same time, we
have repeatedly warned of the “inherent dangers” of such
dual-role testimony. United States v. Cheek, 740 F.3d 440, 447
(7th Cir. 2014); United States v. Tucker, 714 F.3d 1006, 1016 (7th
Cir. 2013); York, 572 F.3d at 425. These dangers include the risk
that a jury may “unduly credit the opinion testimony” due to
Nos. 17-2051, 17-2052, and 17-2060 19
a “perception that the expert was privy to facts about the de-
fendant not presented at trial” or the risk that the jury may
“be smitten by an expert’s ‘aura of special reliability.’” Cheek,
740 F.3d at 447 (quoting York, 572 F.3d at 425); see also Garrett,
757 F.3d at 569. Most often, however, we have cited the risk
that dual-role testimony could confuse the jury. E.g.,
Parkhurst, 865 F.3d at 519; Christian, 673 F.3d at 713; York, 572
F.3d at 425–26.
Agent Vail’s testimony never made clear whether his in-
terpretation of the text messages was based on his expert
opinion, personal knowledge, or both. Agent Vail took the
stand twice at trial. The first time, he testified only about lay
matters within his personal knowledge as case agent: his
DNA swabbing of the defendants and the recordings of
McKissick. The second time, he began again with lay testi-
mony regarding fingerprinting, his analysis of one of the
switch cars, observations of the defendants during his surveil-
lance, and items recovered after the car chase. The govern-
ment then began to elicit Agent Vail’s expert testimony re-
garding the text messages without any sign that he was going
to offer expert opinions.
After the government attempted to qualify Agent Vail to
interpret those messages, it asked whether he “had
knowledge of what occurred on December 12, 2015,” to which
Agent Vail responded “Yes.” The government then asked,
“And so you can give context to these messages; is that cor-
rect,” to which Agent Vail responded, “That’s correct.” The
testimony thus could have led an objective viewer to think
Agent Vail’s personal knowledge of the December 12 events
formed the basis for his interpretation of the text-messages,
not any professional expertise.
20 Nos. 17-2051, 17-2052, and 17-2060
The water got muddier when defense counsel objected
again to the dual-role testimony.
[DEFENSE COUNSEL]: So is he saying he knows these
terms from being an expert in the area or because he’s the
case agent?
THE COURT: Well, let’s find out. Would you inquire?
Q: Are you giving your knowledge because you’re an ex-
pert or your – based on your knowledge as the case agent?
A: Based on my knowledge as the case agent.
[DEFENSE COUNSEL]: That’s why he can’t give those in-
terpretations.
THE COURT: Well, you have also said he – this was his area
of expertise; is that correct?
Q: Would you also say that – you do violent crimes for a
living, is that correct, you investigate them?
A: It is correct that I am an FBI agent and I investigate vio-
lent crimes, yes.
This suggested that Agent Vail would explain the text mes-
sages in his personal, not expert, capacity. When questioning
resumed after a sidebar, the government elicited no clarifica-
tion.
District judges must take precautions to avoid admitting
this sort of confusing dual-role testimony. E.g., Parkhurst, 865
F.3d at 518–19; United States v. Causey, 748 F.3d 310, 320 (7th
Cir. 2014). The government did not structure Agent Vail’s tes-
timony to make clear when he was offering lay testimony and
when he was offering expert opinions. See Tucker, 714 F.3d at
1016; York, 572 F.3d at 425. The district judge did not inform
the jury about the differences in the types of testimony Agent
Vail offered. See Christian, 673 F.3d at 712–13; York, 572 F.3d at
Nos. 17-2051, 17-2052, and 17-2060 21
426. The district judge’s former rule, in fact, precluded the
designation of expert testimony in front of the jury. The gov-
ernment’s foundational question, especially given the murki-
ness of the questioning that followed, offered little clarity into
the differences between Agent Vail’s expert opinions and lay
testimony. See Causey, 748 F.3d at 320.
The jury instructions provided no clarity either. The jury
received two forms of Pattern Criminal Jury Instruction 3.13,
which accurately tells the jurors that they do not have to ac-
cept a witness’s opinion testimony and that they should eval-
uate such testimony based on the witness’s qualifications,
methodology, and other factors. There are two problems with
the application of that instruction to Agent Vail’s dual-role
testimony: First, neither form indicated that Agent Vail of-
fered opinion testimony. Cf. Parkhurst, 865 F.3d at 519 (hold-
ing that Pattern Instruction 3.13 was an appropriate precau-
tion where it identified the witness who offered the opinion
testimony); United States v. Moreland, 703 F.3d 976, 984 (7th
Cir. 2012) (holding the same for a similar instruction given
while the agent was on the stand). Second, this instruction is
meant for witnesses testifying only in one capacity. It does not
purport to help mitigate the risks caused by dual-role testi-
mony. Parkhurst, 865 F.3d at 525 (Easterbrook, J., concurring).
With that said, we recognize a shortcoming in our caselaw.
We have been clear that some general precautions are needed
to limit the risks of dual-role testimony. But we have been un-
clear on specifics. Our caselaw, for one, has not expressly ad-
dressed what a proper dual-role instruction should look like.
More importantly, it has been inconsistent about how district
judges should structure dual-role testimony and distinguish
22 Nos. 17-2051, 17-2052, and 17-2060
the differences for the jury. See id. at 524–26. In Christian, we
stated:
The jury needs to know when an agent is testifying as an
expert and when he is testifying as a fact witness…. To take
the necessary precautions, the court can give an appropriate
cautionary instruction and require examination of the wit-
ness in such a way as to make clear when the witness is tes-
tifying to fact and when he is offering his opinion as an ex-
pert.
673 F.3d at 712–13 (quotations and citations omitted). In Mo-
reland, we said the opposite:
Telling the jury that a witness is both a lay witness and an
expert witness and will be alternating between the two roles
is potentially confusing—and unnecessary. The lawyer ex-
amining the witness need only ask him the basis for his an-
swer to a question, and the witness will then explain
whether it was his investigation … or his general experience
…. That tells the jury what it needs to know in order to de-
termine how much weight to give the testimony and tells
opposing counsel what he needs to know in order to be able
to cross-examine the witness effectively. Using terms like
“lay witness” and “expert witness” and trying to explain to
the jury the difference between the two types of witness is
inessential and, it seems to us, ill advised.
703 F.3d at 983–84. As our colleague Judge Easterbrook has
explained in a concurrence, Christian and Moreland’s “tension
cannot endure indefinitely.” Parkhurst, 865 F.3d at 525 (Easter-
brook, J., concurring).
Nos. 17-2051, 17-2052, and 17-2060 23
This case offers an opportunity to clarify. 3 When a district
judge learns that the government intends to put on dual-role
testimony from a case agent, it should first encourage the gov-
ernment to present the expert and lay testimony separately.
“Seamlessly switching back-and-forth between expert and
fact testimony does little to stem the risks associated with
dual-role witnesses.” United States v. Jones, 763 F.3d 777, 803
(7th Cir. 2014), vacated on other grounds sub nom. United States
v. Drake, 774 F.3d 1104 (7th Cir. 2014); Moreland, 703 F.3d at
983; Christian, 673 F.3d at 713; York, 572 F.3d at 426. Indeed,
juries must parse what they should evaluate based on the wit-
ness’s personal knowledge (lay testimony, see Fed. R. Evid.
701) from what they should evaluate based on the witness’s
qualifications, training, and methods (expert testimony, see
Fed. R. Evid. 702). A witness who careens from one type of
testimony to the other makes that task particularly challeng-
ing.
When the expert portion of the case agent’s testimony be-
gins, the district judge should allow the government to lay its
foundation and establish the agent’s qualifications. After it
does, the district judge should instruct the jury that the testi-
mony it is about to hear is the witness’s opinion based on
training and experience, not firsthand knowledge, and that it
is for the jury to determine how much weight, if any, to give
that opinion. See Christian, 673 F.3d at 712–13; York, 572 F.3d
at 426. Using the phrase “expert testimony” is not important.
See Garrett, 757 F.3d at 569–70; Moreland, 703 F.3d at 984. What
is important is ensuring that the jury understands that the
3 For this matter also, we circulated this opinion to the full court under
Circuit Rule 40(e) before issuing it. No judge in active service requested to
hear the case en banc.
24 Nos. 17-2051, 17-2052, and 17-2060
testimony is different, and should be evaluated differently,
from the agent’s other testimony.
That leaves the appropriate jury instruction. Parkhurst ac-
cepted a version of Pattern Instruction 3.13 (one that identi-
fied the agent as offering opinion testimony) as a precaution-
ary measure for dual-role testimony. A different instruction,
though, is more helpful. In Garrett, we approved the following
instruction aimed at curbing the risks of dual-role testimony:
You have heard the testimony of [an agent], who testified to
both facts and opinions. Each of these types of testimony
should be given the proper weight.
As to the testimony to facts, consider the factors discussed
earlier in these instructions ... As to the testimony on opin-
ions, you do not have to accept [the agent’s] opinion. In de-
ciding how much weight to give it, you should consider the
witness’s qualifications and how he reached his conclusions
along with the other factors discussed in these instructions
for weighing the credibility of witnesses.
757 F.3d at 570. This formulation, or something similar, better
informs the jury of its task—to weigh expert testimony and
lay testimony separately, under their respective standards. 4
The procedures for properly admitting dual-role testi-
mony were not followed in this case. See United States v. Parra,
4
We encourage the Committee on Pattern Criminal Jury Instructions
of the Seventh Circuit to consider adding a pattern instruction to this ef-
fect. We also encourage the Committee to consider Judge Easterbrook’s
proposal from Parkhurst that an agent’s “special knowledge about [expert
subject] does not make his testimony about [lay subject] more reliable than
that of any other witness.” 865 F.3d at 525. This suggestion rightly at-
tempts to mitigate the long-recognized risk that a jury could afford undue
weight to an agent’s testimony because he expresses expert opinions.
Nos. 17-2051, 17-2052, and 17-2060 25
402 F.3d 752, 759 (7th Cir. 2005). The admission of Agent Vail’s
testimony, however, was harmless error. Even disregarding
Agent Vail’s limited expert testimony, the jury heard and saw
convincing evidence of Jett’s and McKissick’s guilt: footage
surveillance of two men, dead ringers for Jett and McKissick,
robbing the check-and-cash stores; confirmatory cell-phone
data; incinerated evidence at McKissick’s home; testimony
about the high-speed chase; and McKissick’s incriminating
stationhouse statements. While we encourage district judges
to use precautions like those described above in admitting a
case agent’s dual-role testimony, we find no reversible error
here.
D. Agent Guy’s Testimony
The defendants (led by Jett) also contend that Agent Guy’s
identification of Jett as one of the robbers requires a new trial.
We review the district judge’s decision to admit evidence for
an abuse of discretion. United States v. Quiroz, 874 F.3d 562,
569 (7th Cir. 2017), cert. denied, 138 S. Ct. 1450 (2018). Again,
we order a new trial only if an error affected the defendant’s
substantial rights. United States v. Brown, 871 F.3d 532, 536 (7th
Cir. 2017).
The district judge permitted Agent Guy’s identification on
two grounds: the open-door doctrine and Rule 701. Under the
open-door doctrine, when a party puts an issue into evidence
it must accept its opponent’s commensurate response. Estate
of Escobedo v. Martin, 702 F.3d 388, 400–01 (7th Cir. 2012). The
gist of the doctrine is proportionality and fairness. When the
opponent’s response “does not directly contradict the evi-
dence previously received” or “goes beyond the necessity of
removing prejudice in the interest of fairness,” it should not
be admitted. United States v. Amaya, 828 F.3d 518, 527 (7th Cir.
26 Nos. 17-2051, 17-2052, and 17-2060
2016) (quoting United States v. Villegas, 655 F.3d 662, 672 (7th
Cir. 2011)). Under Rule 701, a witness can match a defendant
to surveillance footage only if there is a basis for concluding
that the witness “is more likely to correctly identify the de-
fendant from the photograph than is the jury.” United States v.
White, 639 F.3d 331, 336 (7th Cir. 2011) (quoting United States
v. Towns, 913 F.2d 434, 445 (7th Cir. 1990)). When the same
match can be made by the jury, “the witness is superfluous”
and the testimony should not be admitted. United States v.
Earls, 704 F.3d 466, 472 (7th Cir. 2012).
The admission of Agent Guy’s identification was an ag-
gressive application of both the open-door doctrine and Rule
701. Taking the open-door doctrine first, defense counsel’s
cross-examination of Agent Guy entailed the following:
Q: Is it fair to say, Agent – Special Agent Guy, that through-
out your involvement in the investigation, and your
knowledge of the investigation from September 19th, 2015,
the date of the robbery of the Wesleyan Road credit union,
up until the end of the investigation you’ve discovered no
person who can identify my client, Duprece Jett, as having
robbed them, correct?
A: Could you restate the question?
Q: Yes. You’ve uncovered no person who can specifically
identify Durprece Jett as being one of the robbers?
A: Well, I disagree with you.
Q: Okay. Were you involved in the photo spreads that were
shown to witnesses from the bank?
A: No.
The restated question, like the earlier question, plainly sought
to bring out that the government had not identified an
Nos. 17-2051, 17-2052, and 17-2060 27
eyewitness who could identify either Jett or McKissick as the
robbers. To interpret the question to include agents is incon-
sistent with its context and a reasonable understanding of the
word “uncovered” (for agents “uncover” evidence and wit-
nesses, not themselves). Defense counsel may have asked an
inarticulate question or even a “bad” one, as the district judge
put it. But it was not so bad as to effectively put into issue
whether a case agent thought that Jett was the man on camera.
Even if the agent’s interpretation was an innocent misunder-
standing, allowing his response to let in the government’s
own identification of Jett as the robber was neither propor-
tional nor fair. 5 See Amaya, 828 F.3d at 527.
We doubt that Rule 701 provided any more stable ground
for admitting Agent Guy’s identification of Jett. The govern-
ment represented that Agent Guy’s observations while exe-
cuting the search warrant would be helpful to the jury be-
cause Jett had “lost a little bit of weight” since then. On the
stand, Agent Guy testified:
Q: Okay. And after those personal observations, does Mr.
Jett look exactly today like he did back then, or has anything
changed?
A: He looks a little thinner. Otherwise – his facial hair is a
little different. He still has his mustache; and his facial hair;
where it grows out, is the same. If he stood up, I would see
his body type. He was a little heavier, I think.
5
We appreciate the district judge’s decision to limit Agent Guy’s tes-
timony to his own identification and not those of his colleagues. We nev-
ertheless reject that defense counsel opened the door in the first place.
28 Nos. 17-2051, 17-2052, and 17-2060
Agent Guy testified further that he was at the execution of the
search warrant for “[n]ot long.” He did not otherwise detail
the length or manner of his interaction with Jett.
This is not the sort of familiarity with a defendant that we
have generally thought helpful to a jury under Rule 701. See
United States v. Stormer, 938 F.2d 759, 762 (7th Cir. 1991) (wit-
ness had “worked with [the defendant] for several years”);
Towns, 913 F.2d at 445 (witness was the defendant’s former
girlfriend who had a “close association with him”). Granted,
our cases have said that a witness’s experience with the de-
fendant need not be lengthy and the defendant need not nec-
essarily undergo physical changes for a witness’s lay identifi-
cation to be helpful. United States v. Jackson, 688 F.2d 1121,
1125 (7th Cir. 1982); White, 639 F.3d at 336. But given Agent
Guy’s fleeting interaction with Jett and Jett’s minimal (at best)
difference in appearance, we cannot conclude that Agent
Guy’s identification assisted the jury.
Regardless of whether the district judge’s admission of the
identification was an abuse of discretion, however, we again
find harmless error. The jurors observed the surveillance foot-
age on their own. They received the proper instruction re-
garding the weight they should give to testimony, and de-
fense counsel’s cross-examination of Agent Guy made clear
that his identification was only his opinion. Our conclusion
from Jackson is apt: “The jury was free to believe or disregard
[the witness’s] testimony; the issue of whether the defendant
was the same person as the bank robber was left to the jury
for its ultimate determination.” Jackson, 688 F.2d at 1126. Com-
pounding the incriminating surveillance footage, the jury
learned that cell-phone data put Jett and McKissick near the
robberies. They also learned that Jett’s DNA was found in the
Nos. 17-2051, 17-2052, and 17-2060 29
stolen LeSabre. The government’s case, therefore, would not
have been significantly less persuasive without Agent Guy’s
testimony.
This conclusion is unaltered by the fact that the govern-
ment referenced Agent Guy’s identification in its closing ar-
guments. Those comments certainly did not rise to prosecu-
torial misconduct, which we would review for plain error
since Jett did not object to them below. The comments were
not “improper” in light of the district judge’s ruling on the
evidence and, harmless as that ruling was, the comments did
not deprive Jett (or any defendant) of a fair trial. United States
v. Flournoy, 842 F.3d 524, 528 (7th Cir. 2016). The government
merely told the jury that it could use Agent Guy’s identifica-
tion to “help” the jury in making its own decision. If there was
any doubt about the limits of Agent Guy’s identification, de-
fense counsel disabused it during his closing in arguing that
the jury could not defer to Agent Guy and needed to make its
own decision.
Nor was there cumulative error. The evidence we have
identified as sufficiently and persuasively incriminating—the
footage, the cell-phone data, the DNA—would be admitted
even if each of the defendants’ arguments were correct.
E. Remaining Arguments Unique to Walker
The remaining issues on appeal are unique to Walker. He
asserts that there was insufficient evidence to convict him for
conspiracy, that the district judge violated Bruton by admit-
ting the recording of McKissick at the stationhouse, and that
the district judge erred in denying his motion for severance.
30 Nos. 17-2051, 17-2052, and 17-2060
1. Sufficiency of the Evidence on the Hobbs Act Con-
spiracy Count
Walker contends the “fate” of the attempted robbery
count “dooms” the Hobbs Act conspiracy count. We overturn
a jury verdict only if, after viewing the facts in the light most
favorable to the government, there was insufficient evidence
to convict. United States v. Wrobel, 841 F.3d 450, 454 (7th Cir.
2016) (citation omitted). A defendant bears the burden to
“convince” the court that “no rational trier of fact could have
found him guilty.” United States v. Warren, 593 F.3d 540, 546
(7th Cir. 2010) (citation omitted). It is a “heavy” burden—in-
deed a “nearly insurmountable” one. United States v. Maldo-
nado, 893 F.3d 480, 484 (7th Cir. 2018) (citation omitted).
A conviction for a Hobbs Act conspiracy requires proof
beyond a reasonable doubt that the conspiracy existed and
that the defendant joined it with the intent to advance its ob-
jectives. See Corson, 579 F.3d at 810. That a defendant joins the
conspiracy well after its inception is no matter. United States
v. Brown, 865 F.3d 566, 570 (7th Cir. 2017), cert. denied sub
nom. Hawthorne v. United States, 138 S. Ct. 2005 (2018); United
States v. Arrellano, 757 F.3d 623, 634 (7th Cir. 2014). Direct evi-
dence of intent to join the conspiracy is not required; circum-
stantial evidence may suffice. United States v. Goree, 756 F.3d
522, 525 (7th Cir. 2014).
The government presented sufficient evidence to convict
Walker of conspiracy. He was caught with a coconspirator cir-
cling a cash-and-check store (the conspiracy’s preferred tar-
get), in a stolen car (the conspiracy’s modus operandi), with a
duffle bag and ski mask in the car (the conspiracy’s tools).
When law enforcement attempted to pull Walker over, he ev-
idenced guilt by leading them on a high-speed and dangerous
Nos. 17-2051, 17-2052, and 17-2060 31
chase. See, e.g., United States v. Stevenson, 656 F.3d 747, 752 (7th
Cir. 2011); United States v. Robinson, 161 F.3d 463, 467 (7th Cir.
1998). His cell-phone data suggested that he had an interest in
the robberies, as he searched them on the internet. These facts
are in stark contrast to the cases in which an individual was
merely present during conspiratorial acts. See, e.g., United
States v. Baker, 499 F.2d 845, 848–49 (7th Cir. 1974). A rational
jury could have convicted based on this evidence.
The real rub of Walker’s argument is that the reversal of
his Count 2 conviction requires reversal of his Count 1 con-
viction. He presses that without the attempted robbery con-
viction the conspiracy conviction is “gutted.” That argument
reflects a misunderstanding of what is required to prove an
inchoate offense. Conspiracy is an inchoate offense, “the es-
sence of which is an agreement to commit an unlawful act.”
Iannelli v. United States, 420 U.S. 770, 777 (1975). The fact that
the unlawful act—or another inchoate step (like attempt) to-
ward the unlawful act—is not achieved does not undermine
a conspiracy conviction under the Hobbs Act. “The crime of
conspiracy is the agreement itself.” Corson, 579 F.3d at 804.
The two cases upon which Walker relies are inapposite. In
the first, United States v. Buffington, 815 F.2d 1292, 1303 (9th
Cir. 1987), the Ninth Circuit reversed both an attempt and
conspiracy charge for the same reason: a lack of sufficient ev-
idence regarding intent. The reversal of the attempt convic-
tion did not necessitate a reversal on the conspiracy convic-
tion; a lack of evidence that the defendants intended to rob
the bank required the reversal of both. Buffington, 815 F.2d at
1303. Here, however, the reasons for setting aside the attempt
conviction (a lack of force or intimidation) do not speak to the
sufficiency of the conspiracy conviction. In the second case,
32 Nos. 17-2051, 17-2052, and 17-2060
United States v. Thornton, 539 F.3d 741, 751 (7th Cir. 2008), we
reversed a conviction for attempted robbery based on a lack
of proof of intimidation (like here). In so doing, we necessarily
had to reverse the attendant 18 U.S.C. § 924(c)(1)(A) convic-
tion for a lack of the statutorily required predicate crime of
violence. Thornton, 539 F.3d at 751. A Hobbs Act conspiracy,
on the other hand, is not predicated on anything but the
agreement to commit robbery. Corson, 579 F.3d at 810.
2. Bruton Challenge
Walker also argues that the scrubbed video recording of
McKissick’s statements at the stationhouse violated his Sixth
Amendment right to confrontation under Bruton. The record-
ing showed (with redactions crossed out) McKissick saying:
Hey Earl! Earl! Nothing … joyriding … fleeing.
Hey Earl! Hey Bro
They jumped the gun. I say they jumped the gun. We ain’t
do shit. They didn’t give us a chance. So—hey—uhh.
The district judge admitted this recording as a statement by a
party opponent (McKissick) pursuant to Rule 801(d)(2)(A). 6
At trial, Agent Guy explained that McKissick made these
statements sitting alone in an interrogation room. We review
de novo a court’s application of Bruton. United States v. Javell,
695 F.3d 707, 710 (7th Cir. 2012).
In Bruton, the government introduced at trial the confes-
sion of a codefendant which expressly implicated the defend-
ant in a crime. Bruton, 391 U.S. at 124. Even though the trial
6
The district judge correctly rejected the government’s argument that
McKissick made these statements in furtherance of the conspiracy. See
Fed. R. Evid. 801(d)(2)(E).
Nos. 17-2051, 17-2052, and 17-2060 33
judge instructed the jury to consider the statement only as ev-
idence against the codefendant, the Supreme Court held that
the statement violated the defendant’s right under the Con-
frontation Clause because the defendant could not subject his
codefendant to cross-examination. Id. at 137. It explained fur-
ther that “powerfully incriminating extrajudicial statements
of a codefendant,” like the confession of a codefendant, are
generally inadmissible, even with a proper jury instruction.
Id. at 135–36.
The Court later refined Bruton’s reach in Richardson v.
Marsh, 481 U.S. 200 (1987). Richardson held that the admission
of a nontestifying codefendant’s confession does not violate a
defendant’s right to confrontation if (1) the confession is re-
dacted to “to eliminate not only the defendant’s name, but
any reference to his or her existence” and (2) the trial court
provides a proper limiting instruction. 481 U.S. at 211; see also
United States v. Ward, 377 F.3d 671, 676–77 (7th Cir. 2005);
United States v. Sutton, 337 F.3d 792, 799 (7th Cir. 2003). The
Supreme Court then clarified in Gray v. Maryland, 523 U.S.
185, 192 (1998), that the redactions must not be so “obvious”
so as to “closely” resemble an unredacted statement. This, the
Supreme Court reasoned, is because a jury can directly infer
from such “obvious” redactions “that the confession refers
specifically to the defendant.” Id. at 193.
Following Bruton, Richardson, and Gray, we have con-
cluded that a defendant’s “redacted confession may be admit-
ted as long as the redaction does not obviously refer to the co-
defendants.” United States v. Hernandez, 330 F.3d 964, 973 (7th
Cir. 2003); see also Javell, 695 F.3d at 712. If a codefendant’s
confession incriminates the defendant only “when linked
with evidence introduced later at trial,” a limiting instruction
34 Nos. 17-2051, 17-2052, and 17-2060
suffices to protect the defendant’s rights. United States v. Man-
soori, 304 F.3d 635, 663 (7th Cir. 2002) (quoting Richardson, 481
U.S. at 208).
Walker does not have a valid Bruton claim. The scrubbed
video recording did not obviously refer to Walker. It shows
McKissick sitting alone in a room surrounded by cement
walls. The jury received the proper limiting instruction, stat-
ing that it could not consider the statement of McKissick as
evidence against Walker or Jett. There is therefore no Bruton
problem. See Mansoori, 304 F.3d at 663. Walker, nevertheless,
argues that the video recording was incriminating because
the jury could have concluded that McKissick and Walker
were detained in the same stationhouse after the car chase.
Yet the video recording does not suggest that McKissick and
Walker were detained near one another (again it shows only
McKissick alone in a room with cement walls), and so
Walker’s argument works only “when linked” with the trial’s
other evidence. Richardson, 481 U.S at 208. Any potential prej-
udice that such inferential linking caused was cured by the
instruction. See Mansoori, 304 F.3d at 663.
In any event, the Supreme Court has drawn a distinction
between statements that are “facially incriminating” and
those that are “inferential[ly] incriminat[ing].” Gray, 523 U.S.
at 196. Indeed Bruton, Gray, and Richardson each concerned
“confessions.” See Javell, 695 F.3d at 710–12. Though sugges-
tive, McKissick’s statements are not so facially and “power-
fully incriminating” as to be considered a confession. See
United States v. Volpendesto, 746 F.3d 273, 291 (7th Cir. 2014).
Nor can it be said that McKissick’s statements, as scrubbed,
even “indirectly implicated” Walker. Javell, 695 F.3d at 712.
Walker does not argue that the redactions themselves leave
Nos. 17-2051, 17-2052, and 17-2060 35
the impression that McKissick was attempting to communi-
cate with, and therefore implicate, someone else—which was
Gray’s concern. While the jury may have assumed that the two
were at the same stationhouse, it is a stretch to assume that
the jury understood that they sat in adjacent rooms and that
McKissick was attempting to communicate with Walker.
3. Motion to Sever
Finally, Walker protests the district judge’s denial of his
motion to sever, which he renewed at the close of evidence.
District judges have “wide discretion in determining when
the prejudice of joinder outweighs the benefits of a single
trial.” United States v. Carrillo, 435 F.3d 767, 778 (7th Cir. 2006).
We therefore review denials of motions to sever for abuse of
discretion. United States v. Jackson, 787 F.3d 1153, 1158 (7th Cir.
2015).
Rule 14(a) permits a court to sever codefendants’ trials
when “consolidation for trial appears to prejudice a defend-
ant or the government.” Fed. R. Crim. P. 14(a). In moving un-
der Rule 14(a), a defendant must show a “serious risk” that a
joint trial will “compromise a specific trial right” or “prevent
the jury from making a reliable judgment about guilt or inno-
cence.” Zafiro v. United States, 506 U.S. 534, 539 (1993). The risk
of prejudice is heightened when a defendant is distinctly less
culpable than his codefendants. Id. at 540. A defendant, how-
ever, is not entitled to severance simply because his chances
of acquittal are higher in a separate trial. Id. On the contrary,
the prevailing preference is that codefendants be tried to-
gether. United States v. Goodwin, 496 F.3d 636, 644 (7th Cir.
2007). That preference is especially strong for coconspirators
who are indicted together. United States v. Maggard, 865 F.3d
960, 971 (7th Cir. 2017), cert. denied sub nom. Bell v. United
36 Nos. 17-2051, 17-2052, and 17-2060
States, 138 S. Ct. 2014 (2018); United States v. Spagnola, 632 F.3d
981, 987 (7th Cir. 2011).
Walker cannot overcome this preference. While he com-
plains of the “inflammatory evidence” about Jett and
McKissick’s robberies, which occurred before he joined the
conspiracy, that evidence would likely have been admissible
against him anyway. See, e.g., United States v. Arrellano, 757
F.3d 623, 634 (7th Cir. 2014) (explaining that a conspiracy’s
latecomer adopts “the previous acts and declarations of his
fellow co-conspirators”) (emphasis and citation omitted).
Walker also complains about the “atrocious” nature of his co-
conspirators’ conduct, and he argues that it deprived him of
a right to a fair trial. That argument has at least two flaws.
First, there is no reason to think that the jury convicted the
defendants out of animus for their violence, as opposed to
based on an objective evaluation of the evidence and the dis-
trict judge’s instructions on the law. Second, Walker agreed
(the evidence showed) to join that violent conspiracy and his
own conduct endangered plenty of lives in its own right, as he
led law enforcement on a high-speed chase at times heading
in the wrong direction of traffic.
III. Conclusion
For these reasons, we REVERSE and REMAND with in-
structions that the district court enter a judgment of acquittal
for each defendant with respect to Count 2 and resentence
each defendant accordingly. We otherwise AFFIRM the dis-
trict court’s judgment.