United States v. Fairly Earls , 704 F.3d 466 ( 2012 )


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  •                             In the
    United States Court of Appeals
    For the Seventh Circuit
    No. 11-3347
    U NITED STATES OF A MERICA,
    Plaintiff-Appellee,
    v.
    F AIRLY W. E ARLS,
    Defendant-Appellant.
    Appeal from the United States District Court
    for the Northern District of Indiana, Hammond Division.
    No. 10 CR 222—Joseph S. Van Bokkelen, Judge.
    A RGUED S EPTEMBER 17, 2012—D ECIDED D ECEMBER 27, 2012
    Before E ASTERBROOK, Chief Judge, and B AUER and
    W OOD , Circuit Judges.
    B AUER, Circuit Judge. On July 10, 2011, a jury found
    Fairly W. Earls (“Earls”) guilty of making a false state-
    ment on a passport application, aggravated identity
    theft, and knowingly transferring a stolen identification
    document in violation of 
    18 U.S.C. § 1542
    , § 1028A(a)(1),
    and § 1028(a)(2). On October 5, 2011, the district court
    sentenced Earls to thirty-six months’ imprisonment on
    2                                                No. 11-3347
    Counts One and Three with a consecutive sentence
    of twenty-four months’ imprisonment on Count Two.
    Earls’ base offense level at sentencing was determined
    to be eight; however, through the application of a
    cross-reference listed in Sentencing Guidelines Sec-
    tion 2L2.2(c)(1)(A), Earls’ offense level was increased
    to fifteen. On appeal, Earls challenges the admission of
    certain evidence at trial, as well as his sentence. For
    the following reasons, we affirm.
    I. BACKGROUND
    In February 1999, Earls was convicted in Wisconsin
    state court of three felony counts of sexual assault of a six-
    year-old child in violation of Wisconsin Statute § 948.02.
    Earls was sentenced to forty-five years’ imprisonment
    and twenty years’ probation. After exhausting his state
    court remedies, Earls sought a federal writ of habeas
    corpus, alleging ineffective assistance of counsel. In
    August 2004, we concluded that Earls’ trial counsel was
    ineffective and ordered that either the writ be granted
    or the State retry Earls. See Earls v. McCaughtry, 
    379 F.3d 489
     (7th Cir. 2004). The state opted to retry.
    In February 2005, Earls posted a $25,000 cash bond
    with the Wisconsin state court. As a condition to Earls’
    release, he agreed to appear at all court dates, have
    no contact with minors, and notify the court if his
    address changed. When Earls bonded out of jail, he was
    listed as living with his sister Alice in Burbank, Illinois,
    a home Alice had previously shared with her ex-husband
    David Fuhrman.
    No. 11-3347                                               3
    On October 31, 2005, the state of Wisconsin filed a
    new case against Earls, charging him with twelve counts
    of bail jumping, in violation of Wisconsin Statute § 946.49.
    In October and November 2005, Earls violated his bond
    conditions by failing multiple times to appear in court
    for hearings and having contact with a minor. Conse-
    quently, a bench warrant was issued. In late Decem-
    ber 2005, Earls’ $25,000 cash bond was forfeited. In
    January 2006, Wisconsin law enforcement enlisted the
    United States Marshal Service to help track down Earls.
    The Marshal Service interviewed Earls’ friends and
    family, including his sister Alice, but were unable to
    generate any leads.
    Meanwhile, on December 9, 2005, an individual had
    requested the State of Illinois Department of Public
    Health to issue a certified copy of the birth certificate of
    David Fuhrman, Earls’ former brother-in-law. This was
    done without Fuhrman’s knowledge or consent. Then
    on March 14, 2006, the individual brought the birth certifi-
    cate, together with Fuhrman’s divorce decree, to the
    Indiana Bureau of Motor Vehicles and obtained an
    Indiana state identification card in Fuhrman’s name.
    Later that same day, the individual went to an
    Indiana post office and applied for a passport using
    the newly obtained Indiana state identification card
    and Illinois birth certificate. The passport application
    listed Fuhrman’s correct name, date of birth, and social
    security number. Several weeks after the application
    was submitted, the Department of State issued a pass-
    port in the name of David Robert Fuhrman.
    4                                             No. 11-3347
    On June 21, 2006, the new Fuhrman passport was used
    to gain entry into Panama. The holder of the passport
    left Panama three days later and traveled to Nicaragua
    and Costa Rica. Additional passport stamps show that
    the passport holder entered Panama again in 2007.
    In January 2008, Earls used the Fuhrman passport to
    obtain a Panamanian Retirement Tourist Visa in
    Fuhrman’s name. Earls denied at trial that he was the
    individual that applied for the subject passport, how-
    ever, he did not dispute that he lived in Panama and
    used a passport in the name of David Fuhrman while
    living there.
    In August 2010, nearly five years after Earls had failed
    to appear for his hearings in Wisconsin state court,
    the United States Marshal Service received a tip that
    Earls was living in Panama under the name David
    Fuhrman. The Marshal Service contacted the Depart-
    ment of State, which provided the photo used to obtain
    the Fuhrman passport. The deputy marshal in receipt
    of the photo recognized the man as Earls and notified
    the Department of State, which then reached out to the
    United States Embassy in Panama. In Panama, an investi-
    gator examined the immigration records and discovered
    that an individual identifying himself as David Fuhrman
    was living in Boquete. The investigator and Panama
    National Police went to Boquete and saw Earls walking
    into a grocery store. Earls was then arrested, returned
    to the United States, and subsequently indicted.
    On July 10, 2011 a jury found Earls guilty of making
    a false statement on a passport application, aggravated
    No. 11-3347                                              5
    identity theft, and knowingly transferring a stolen iden-
    tification document. The Presentence Investigation
    Report (PSR) recommended an offense level of fifteen.
    The PSR originally set a base offense level for Earls’ of-
    fense at eight, but increased the offense level (through
    a cross-reference pursuant to § 2L2.2(c)(1)(A)) because
    Earls utilized the fraudulently obtained passport in the
    commission of a felony offense, namely bail jumping.
    After considering the PSR’s recommendation, and evalu-
    ating the sentencing factors listed in 
    18 U.S.C. § 3553
    (a),
    the district court sentenced Earls to thirty-six months’
    imprisonment on Counts One and Three with a consecu-
    tive twenty-four months’ imprisonment on Count Two.
    The district court noted that this above-range sentence
    was sufficient, but not greater than necessary, in
    light of Earls’ prior convictions for sexually abusing
    his daughter and another 13-year-old, and general lack
    of respect for the law.
    II. DISCUSSION
    Earls now files a three-fold appeal. He contends that
    the trial court erred in admitting prejudicial evidence
    that he faced up to sixty years in prison on his pending
    state felony charges, that the trial court improperly
    allowed two Government agents to identify Earls
    via photographs at trial, and finally, that the trial court
    erred when it applied the cross-reference provision
    in Sentencing Guideline § 2L2.2(c)(1)(A). We address
    each issue in turn.
    6                                               No. 11-3347
    A. Evidence of Potential State Penalties
    Earls’ first contention is that the district court erred in
    admitting evidence that Earls was facing up to sixty
    years in prison on pending state felony charges. A trial
    court’s evidentiary rulings will not be reversed on
    appeal, absent a showing of abuse of discretion. United
    States v. Chambers, 
    642 F.3d 588
    , 594 (7th Cir. 2011). If
    we find there was an abuse of discretion, we then
    review whether the error was harmless. See United States
    v. Miller, 
    673 F.3d 688
    , 699 (7th Cir. 2012).
    At the time Earls fled to Panama, he was also facing
    three felony charges in Wisconsin state court, carrying
    a potential penalty of up to sixty years in prison. Before
    trial in this case, the Government filed notice that
    it intended to introduce these penalties as motive
    evidence pursuant to Federal Rule of Evidence 404(b).
    The Government argued that these charges, and their
    corresponding penalty, were admissible as evidence
    of Earls’ motive in obtaining Fuhrman’s passport and
    fleeing to Panama.
    Earls objected, in part, arguing that informing the jury
    of the maximum penalties he faced invited speculation
    as to the nature of the charges, and risked substantial
    prejudice. Earls offered to stipulate that he faced felony
    charges, posted a $25,000 bond that was then forfeited,
    and that he now faced additional felony charges with
    substantial penalties. The district court denied Earls’
    objection and permitted the Government to admit
    evidence that the penalties at issue were substantial
    and what those penalties would be. However, the
    No. 11-3347                                                7
    district court ruled that the Government could not delve
    into the actual charges unless the door was opened
    by Earls. The district court also said it would give a
    limiting instruction directing the jury to consider the
    evidence only as it pertained to motive.
    At trial, over Earls’ objection, the Government intro-
    duced evidence that Earls faced three additional felony
    charges in Wisconsin state court, with a potential penalty
    of up to sixty years in prison. The Government did not
    mention the specific offenses charged and the district
    court gave a limiting instruction as promised.
    On appeal, Earls argues that the district court commit-
    ted procedural error by failing to consider whether
    the probative weight of the motive evidence was sub-
    stantially outweighed by the danger of unfair prejudice.
    Earls also contends that the district court committed
    substantive error by rejecting his proposed stipulation,
    that he faced “substantial penalties” in Wisconsin state
    court and forfeited a $25,000 bond. Earls believed this
    stipulation fairly apprised the jury of his motive to
    commit the alleged offenses without the danger of
    unfair prejudice. Earls further argues that informing the
    jury of the maximum penalties he potentially faced only
    invited speculation as to the nature of the charges.
    First, Rule 404(b) does not provide a rule of automatic
    admission whenever bad acts evidence can be plausibly
    linked to “another purpose,” such as knowledge or
    intent, listed in the rule. United States v. Miller, 
    673 F.3d 688
    , 696 (7th Cir. 2012). The Rule 402 requirement
    of relevance and the unfair prejudice balancing inquiries
    8                                               No. 11-3347
    of Rule 403 still apply with full force. 
    Id.
     (citations omit-
    ted). Under Rule 403, relevant evidence “may be excluded
    if its probative value is substantially outweighed by
    the danger of unfair prejudice.” Fed. R. Evid. 403;
    United States v. Ozuna, 
    674 F.3d 677
    , 682 (7th Cir. 2012).
    When determining the admissibility of evidence under
    Rule 403, this Court “employ[s] a sliding scale approach:
    as the probative value increases, so does our tolerance
    of the risk of prejudice.” Whitehead v. Bond, 
    680 F.3d 919
    ,
    930 (7th Cir. 2012).
    In Earls’ case, the state court penalties he faced
    were highly probative as to his motive to flee. Earls was
    fifty-one years old in 2004, and he was facing a
    potential sentence that would have likely resulted in
    him spending the rest of his life in prison. Earls argues
    that informing the jury of the maximum penalty he
    faced only invited speculation as to the possible heinous
    nature of the charges. We acknowledge that this was a
    possibility. Nevertheless, the length of the penalty itself
    is exactly what made this evidence probative into
    Earls’ motive to flee the country. In this case, the dis-
    trict court conducted the Rule 403 balancing test and
    excluded the fact that Earls’ pending charges involved
    the sexual assault of a six-year-old. Further, it was
    made clear during trial that Earls did not face a
    mandatory minimum penalty. Therefore, the jury was
    aware that Earls could have received a sentence
    ranging from probation to sixty years. This balanced
    presentation of the evidence mitigated any potential risk
    of unfair prejudice and certainly does not outweigh
    the probative value of this motive evidence.
    No. 11-3347                                                   9
    Seeking to avoid this result, Earls relies on United
    States v. Ciesiolka, 
    614 F.3d 347
     (7th Cir. 2010). In Ciesiolka,
    we found that the district court abused its discretion
    by admitting mountains of Rule 404(b) evidence, much
    of which was highly prejudicial, and introduced
    in a seemingly unconstrained way. 
    Id. at 358
    . However,
    in Ciesiolka, the prejudicial evidence at issue was day-
    long exposure to voluminous evidence that included
    appalling images of child pornography and numerous
    offensive instant message conversations. 
    Id. at 357
    . We
    reasoned that there was a real danger that such
    evidence, dumped without restraint into the record, can
    lead a jury to convict a defendant not on the basis
    of proof of the crime with which he has been charged,
    but for simply being a bad person. 
    Id.
     The appalling and
    voluminous images offered in Ciesiolka differs vastly
    from the evidence at issue here. Moreover, we noted in
    Ciesiolka that the prejudice could conceivably have
    been cured by appropriate limiting instructions. 
    Id. at 358
    . The district court in Earls’ case provided such a
    limiting instruction, directing the jury to only con-
    sider the evidence of Earls’ possible state penalties as
    evidence of motive. Therefore, we find the district court
    did not abuse its discretion in admitting Rule 404(b)
    evidence in this case.
    B. Photo Identification
    Earls next objects to the trial testimony of Deputy
    Marshal Jeremy Loesch and Department of State Special
    Agent Ben Hammond, who testified for the Government
    10                                              No. 11-3347
    that Earls was the man depicted in the photographs
    attached to the Fuhrman passport application and
    Indiana state identification card. Earls objected to the
    testimony of both witnesses. Both parties agree that the
    identifications by Deputy Marshal Loesch and Special
    Agent Hammond from the photographs are considered
    lay opinion evidence and their admissibility at trial is
    governed by Federal Rule of Evidence 701. Rule 701
    allows a lay witness to give opinion testimony if it is:
    “(a) rationally based on the witness’ perception, or
    (b) helpful to clearly understand the witness’ testimony
    or determine a fact at issue.” Fed. R. Evid. 701. Earls
    argues that Deputy Marshal Loesch and Special Agent
    Hammond’s testimony constituted invalid lay opinions
    because their testimony was not based upon personal
    knowledge of Earls and was not “helpful” as defined by
    Rule 701. We review evidentiary rulings of the district
    court under a deferential standard, to determine if there
    was an abuse of discretion. “A district court abuses its
    discretion when it commits an error of law or makes a
    clearly erroneous finding of fact.” Christmas v. City of
    Chicago, 
    682 F.3d 632
    , 638 (7th Cir. 2012).
    The theory behind Rule 701 “is that wherever inference
    and conclusions can be drawn by the jury as well as by
    the witness, the witness is superfluous; . . . a lay opinion
    is received because and whenever his facts cannot be
    so told as to make the jury as able as he to draw the
    inference.” United States v. Jackson, 
    688 F.2d 1121
    , 1124
    (7th Cir. 1982); citing 7 Wigmore on Evidence (Chad-
    bourn rev. 1978) § 1917.8 at 10. Here, the Government
    concedes that neither the Deputy Marshal or the Special
    No. 11-3347                                               11
    Agent had personally met Earls prior to their identifica-
    tion testimony. Their knowledge of Earls’ physical
    features stems from their role in his investigation,
    during which both the Deputy and the Special Agent
    viewed multiple photographs of Earls. However, the
    Deputy Marshall and Special Agent were looking at the
    same photographs that had already been given to the
    jury, and neither man had personal contact with Earls
    prior to trial that would have placed them in a better
    position to identify Earls as the man depicted in the
    photographs than the jury. Rule 701 permits a witness
    to offer helpful testimony based upon his or her own
    perceptions. Our sister circuits have consistently held
    that Rule 701 does not extend so far as to allow a
    witness to serve as the thirteenth juror and compare
    two pieces of evidence that are already available to the
    jury. See United States v. LaPierre, 
    998 F.2d 1460
    , 1465
    (9th Cir. 1993) (The task of identifying the defendant in
    a surveillance photograph is a task best left to the jury,
    rather than a witness who had never personally met the
    defendant prior to trial); United States v. Jackman, 
    48 F.3d 1
    , 4-5 (1st Cir. 1995) (Upholding lay opinion identification
    testimony “when the witness possesses sufficiently rele-
    vant familiarity with the defendant that the jury cannot
    also possess, and when the photographs are not either
    so unmistakably clear or so hopelessly obscure that the
    witness is no better-suited than the jury to make the
    identification” ); United States v. Pierce, 
    136 F.3d 770
    , 774
    (11th Cir. 1998) (Whether a particular witness is better
    suited than the jury correctly to identify a defendant as
    the individual depicted in surveillance photographs
    12                                             No. 11-3347
    turns on a number of factors . . . [p]erhaps most critical
    to this determination is the witness’s level of familiarity
    with the defendant’s appearance).
    In this case, we find the testimony of Deputy Marshal
    Loesch and Special Agent Hammond to be of dubious
    value. Neither man had ever met Earls prior to trial.
    Furthermore, their identification testimony was solely
    the comparison of two photographs already in evidence.
    We believe this is a matter that should have been left
    to the jury, and find that the Deputy and Special Agent’s
    testimony was admitted in error.
    Nonetheless, Earls’ conviction still stands because
    the error was harmless. “An error is harmless if the re-
    viewing court is convinced that the jury would have
    convicted even absent the error.” United States v. Simmons,
    
    599 F.3d 77
    , 780 (7th Cir. 2010). Earls conceded that
    he used the Fuhrman passport in Panama to secure
    a Panamanian retirement visa. Earls even initially identi-
    fied himself as David Furhman when approached
    in Boquete by law enforcement. And, David Fuhrman
    identified Earls as the man depicted in the Indiana
    state identification card photograph. As Earls’ brother-
    in-law, there is no doubt Fuhrman had personal
    familiarity with Earls. In light of the overwhelming evi-
    dence in this case, it is reasonable to conclude that
    the outcome of this trial did not turn on the testimony of
    the Deputy Marshal and Special Agent. Therefore, we
    find the admission of the lay witness identification testi-
    mony of Deputy Marshal Loesch and Special Agent
    Hammond to be harmless error.
    No. 11-3347                                              13
    C. Cross-Reference in Sentencing Guideline § 2L2.2(c)
    Earls’ final contention on appeal is that his sentence
    should be vacated because the district court errone-
    ously calculated his Sentencing Guideline range through
    a cross-reference contained in § 2L2.2(c)(1)(A). We
    review the legal interpretation of a section of the Guide-
    lines de novo. United States v. Zamora, 
    320 F.3d 704
    , 708
    (7th Cir. 2003).
    Based on Earls’ three-count conviction of making a
    false statement on a passport application, aggravated
    identity theft, and knowingly transferring a stolen iden-
    tification document, Earls’ PSR recommended that his
    total offense level be set at fifteen. The PSR originally
    calculated Earls’ base level offense to be eight, but in-
    creased his offense level to fifteen through the applica-
    tion of a cross-reference listed in Sentencing Guidelines
    § 2L2.2(c)(1)(A). The PSR concluded that because Earls had
    used a passport in the commission of a felony, namely bail
    jumping, the court should apply § 2L2.2(c)(1)(A).
    Section 2L2.2(c)(1)(A) directs that “[i]f the defendant used
    a passport or visa in the commission or attempted com-
    mission of a felony offense, other than an offense
    involving violation of immigration laws, apply § 2X1.1
    (Attempt, Solicitation, or Conspiracy) in respect to that
    felony offense.” U.S.S.G. § 2L2.2 (c)(1)(A) (2010). In turn,
    § 2X1.1 of the Sentencing Guidelines then directs the
    court to apply “[t]he base level from the guideline
    for the substantive offense, plus any adjustments from
    such guideline for any intended offense conduct that
    can be established with reasonable certainty.” U.S.S.G.
    14                                             No. 11-3347
    § 2X1.1(a) (2010). Here, the district court determined by
    a preponderance of the evidence that Earls used
    his passport to commit the state court felony offense of
    bail jumping. Pursuant to Wisconsin Criminal Code
    946.49(1), “Whoever, having been released from custody
    under chapter 969, intentionally fails to comply with the
    terms of his or her bond” commits a Class H felony if
    the person is charged with a felony. The district court
    concluded that this offense most closely correlates to
    Sentencing Guideline § 2J1.6 (Failure to Appear by De-
    fendant) and therefore applied that Guideline, thereby
    bringing the offense level to fifteen.
    Earls argues that the cross-reference was done
    in error based upon the commentary language contained
    in Application Note 2 to § 2X1.1. Application Note 2
    defines “substantive offense” to mean “the offense that
    the defendant was convicted of soliciting, attempting, or
    conspiring to commit.” U.S.S.G. § 2X1.1 cmt. n.2 (2010).
    Earls, therefore, contends that the district court erred
    when it applied § 2X1.1 because at the time Earls was
    sentenced, he had not been actually convicted for failure
    to appear in Wisconsin state court, the underlying
    offense at issue here. In turn, Earls contends that there
    is therefore no “substantive offense” for purposes of
    § 2X1.1, and as a result, no basis for the cross-reference.
    Earls argues that absent the application of the cross-
    reference contained in § 2L2.2(c)(1)(A), his base offense
    level would have remained at level eight, which carried
    a recommended sentencing range of zero to six months.
    As Earls concedes, his position is contrary to precedents
    from other jurisdictions. See United States v. O’Flanagan,
    No. 11-3347                                              15
    
    339 F.3d 1229
    , 1233 (10th Cir. 2003); United States v.
    Drew, 
    200 F.3d 781
    , 879 (D.C. Cir. 2000); United States v.
    Branch, 
    91 F.3d 699
    , 742-42 (5th Cir. 1996); United States
    v. Smith, 
    997 F.2d 396
    , 397 (8th Cir. 1993). The Tenth
    Circuit effectively addressed the issue of whether the
    commentary contained in Application Note 2 to § 2X1.1
    applies when the Guideline is reached by cross-reference
    in United States v. O’Flanagan, 
    339 F.3d 1229
    , 1233 (10th
    Cir. 2003). In that case, O’Flanagan argued that his sen-
    tence was illegally enhanced by the district court’s cross-
    reference from U.S.S.G. § 2K2.1(c)(1)(A) to § 2X1.1,
    which he argues, resulted in an improper use of § 2B3.1(a)
    (robbery Guideline) to calculate his sentence. Id. at 1231.
    O’Flanagan contended that the district court should not
    have used the robbery Guideline to calculate a higher
    offense level because he had not been convicted of
    robbery. Id. Ultimately, the Court concluded that § 2X1.1,
    when cross-referenced by § 2K2.1(c), does not require
    a conviction before a district court may apply the use
    of the Guideline provision applicable to the conduct
    underlying offense. Id. at 1234. The Court further
    noted their conclusion was confirmed by the express
    intent of the Sentencing Commission, the uniformity of
    persuasive authorities, the purpose of the Sentencing
    Guidelines, and the context in which § 2X1.1 is used. Id.
    We agree with our sister circuits. We find that the
    commentary of Application Note 2 does not apply when
    § 2X1.1 is reached by cross-reference from § 2L2.2(c)(1)(A).
    When § 2X1.1 is applied directly, the note clarifies that
    the Guideline is directing the district court to begin
    with the Guideline of the substantive offense underlying
    16                                              No. 11-3347
    the conspiracy conviction. However, when § 2X1.1 is
    reached by cross-reference, it rare that a defendant will
    have already been convicted of “soliciting, attempt, or
    conspiring to commit” an underlying offense at the time
    of sentencing. Therefore, we conclude that the com-
    mentary in Application Note 2 was logically intended
    to be applied when § 2X1.1 is applied directly, not when
    it is reached through cross-reference from § 2L2.2(c)(1)(A).
    As a result, we find that the district court did not err
    in its calculation of Earls’ offense level.
    III. CONCLUSION
    For the foregoing reasons, we A FFIRM the judgment of
    the district court.
    12-27-12