United States v. Dante Jones ( 2014 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 11-3864 & 12-1695
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DANTE JONES and ROBERT R. BROWN,
Defendants-Appellants.
Appeals from the United States District Court for the
Eastern District of Wisconsin.
No. 11-CR-52 — J.P. Stadtmueller, Judge.
ARGUED MARCH 1, 2013 — DECIDED JANUARY 9, 2014
Before ROVNER, WILLIAMS, and HAMILTON, Circuit Judges.
ROVNER, Circuit Judge. On November 1, 2011, a jury found
Robert R. Brown guilty of armed bank robbery under 18 U.S.C.
§§ 2 & 2113(a) and (d), and brandishing a firearm in connection
with a crime of violence under 18 U.S.C. §§ 2 and
924(c)(1)(A)(ii). Those charges stemmed from the armed
robbery of the Guaranty Bank in Milwaukee, Wisconsin, on
October 21, 2010. Dante D. Jones acknowledged participating
in that robbery as a getaway driver, but the government agreed
to drop that charge against him as well as the charge in a
2 Nos. 11-3864 & 12-1695
second bank robbery, and to prosecute him only on a third
bank robbery charge, and Jones testified against Brown in
Brown’s trial for the Guaranty Bank robbery.
Brown appeals his conviction arguing that the court
allowed the government to introduce expert testimony as lay
testimony, that the jury instructions reduced the government's
burden of proof, and that improper closing argument state-
ments by the government denied him a fair trial. Jones, who
pled guilty to reduced charges, appeals only his sentence. This
court sua sponte consolidated both appeals.
The central issue in Brown’s trial was whether he was one
of the two men who entered the bank on October 21 and
robbed it. The testimony at trial as to the identity of the
perpetrators consisted primarily of Jones’ testimony, but also
included testimony from the witnesses at the bank at the time
and videotapes of the incident. That testimony established that
two men entered the bank on October 21, 2010, wearing hats or
hoodies, as well as masks or clothing over their faces that
revealed only their eyes. Both men wore gloves, and accord-
ingly there was no fingerprint evidence identifying the
perpetrators. Because of those efforts to conceal their identities,
bank employees could provide only general descriptions of the
height, race and ages of the offenders. One of the men bran-
dished a gun throughout the ordeal.
After entering the bank, one of the men shouted for
everyone to get down. As one of them jumped over the teller
counter, the other pointed his gun at bank employee Alice
Paeglow. Paeglow handed money from her register over the
counter to the man with the gun. The man behind the teller
Nos. 11-3864 & 12-1695 3
counter removed money from two drawers, handing at least
some of that to his accomplice. Bank teller Stephanie Arndt
testified that her register contained a dye pack as well as ?bait
money.” She testified that a dye pack looks like a pack of $20
bills but contains a sensor that causes it to count down after it
exits the bank and then explode, spewing red dye and causing
burns. Paeglow also testified that Brown retrieved the dye pack
along with cash from her drawer. The assistant bank manager
Mariam Qteiry testified that at some point the man behind the
counter (identified by Jones as Brown) placed his hand into his
left pocket, and the videotape from the bank surveillance
cameras also showed him stuffing something into his left
pocket as he left the bank.
Jones testified that he and Brown met with Lorenzo Lardy-
dell on the morning of the robbery with the intent to purchase
marijuana, when Lardydell said he was going to rob a bank
and urged them to join him. Jones testified that the plan was
for Lardydell to hold the gun and for Brown to hurdle the
counter and grab as much money as possible, and after
viewing the surveillance video from the bank Jones testified
that the robbery proceeded according to that plan. Lardydell
had a mask and Brown had torn his shirt to make a face-cover
for himself. Jones further testified that when Lardydell and
Brown exited the bank, Lardydell was carrying the bag and it
began to smoke. They entered the car with the bag still
smoking, but as tear gas began to build up Lardydell threw the
bag from the car. Lardydell left the car later in order to try to
retrieve the bag, and Brown and Jones drove away. Jones
testified that approximately 12 blocks north and 2 blocks east
of the bank, Brown began to throw money out of his pocket
4 Nos. 11-3864 & 12-1695
because his pants were essentially on fire. The dye pack had
apparently exploded in his pocket where he had stuffed some
of the money from the teller drawer. They continued driving
to the home of Brown’s sister, at which time Brown showed
Jones a grapefruit-sized blister on the thigh area of his left leg.
Consistent with that testimony, the police recovered a dye-
stained messenger bag containing money, a gun, and a dye
pack with part of the words ?Guaranty Bank,” from a street
immediately west of the bank. They retrieved the second dye
pack from an alley approximately 14 blocks away from the
bank. The government also introduced the testimony of
Detective Ralph Spano, who participated in the investigation
of the case. Spano testified regarding the firearm from the
robbery and the number of associates with whom Dante Jones
committed crimes, and also provided testimony regarding the
characteristics of dye packs. In part, Spano testified that a dye
pack contains a timing device that can be set to detonate
between 10 to 30 seconds after it passes the bank’s exit, and
that the timing of the detonation is dependent upon the
environment of the bank to ensure that it explodes shortly after
the exit to create witnesses that are outside the bank. Spano
also testified that upon detonation the dye pack instantly burns
at about 400 degrees and releases smoke, tear gas, and red dye.
When asked if he had ever personally observed a situation in
which a dye pack detonated near a person’s skin, Spano
responded that he had seen that three to five times in his career
and he described his observations. He stated that he had seen
people stuff the dye packs down their pants and suffer very
badly burned genitalia, place them in the side pants pockets in
which the dye packs burned through the inner lining of the
Nos. 11-3864 & 12-1695 5
pockets and burned their legs, and position the dye packs in
large puffy jackets where the packs burned through the jackets
but not the inner clothes which were stained with the dye.
The government subsequently introduced photographs of
Brown’s left leg, but no government witness testified that the
marks on his leg were burn marks. Brown, however, produced
a witness who testified that he burned that leg when a firework
hit him at a family picnic at a park.
Brown also challenged Jones’ credibility by presenting
evidence to the jury that Jones had a powerful incentive to
implicate him in the robbery. Jones was implicated in three
bank robberies, and testified that the government did not
charge him in two of those robberies, including the Guaranty
Bank robbery, dropped one of the two charges in the third
robbery, and agreed to recommend a lower sentence for that
remaining charge. In addition, Brown demonstrated that Jones
lied to the police when he spoke with them about the robberies
in March 2011, in that he told the police that Brown was at the
house when he and others were planning a different robbery,
but in fact Brown was in custody on an unrelated matter on
that date. Jones also acknowledged that when he initially spoke
to the police he could not immediately recall which leg Brown
had burned. Finally, Jones acknowledged that while speaking
with the police in March 2011, he learned that Brown was the
person who implicated Jones in a previous armed robbery
involving Jones’ friend, which had resulted in Jones’ losing a
number of close friendships, and that he was angry about that
situation.
6 Nos. 11-3864 & 12-1695
Brown first argues that this court should vacate his convic-
tion because the district court erred in allowing Detective
Spano to testify as to the nature of dye packs. Brown asserts
that Spano thereby presented expert witness testimony without
complying with the evidentiary rules cabining such testi-
mony—specifically Federal Rules of Evidence 701 and 702.
Rule 701 provides that ?a witness who is not an expert may
offer an opinion when it is: ‘(a) rationally based in the witness’s
perception; (b) helpful to clearly understanding the witness’s
testimony or to determining a fact in issue; and (c) not based
on scientific, technical, or other specialized knowledge within
the scope of Rule 702.’” United States v. Mendiola, 707 F.3d 735,
741 (7th Cir. 2013), quoting Fed. R. Evid. 701. Where testimony
is based on specialized knowledge within the scope of Rule
702, it has to comply with some safeguards of expert testi-
mony, which include a requirement that such testimony be
disclosed to the defendant prior to trial. See United States v.
York, 572 F.3d 415, 421 (7th Cir. 2009); Fed. R. Crim. P.
16(a)(1)(G). Therefore, the initial question is whether the
testimony crossed the line to expert testimony.
Because no objection was raised at trial to Spano’s testi-
mony, we review only for plain error. In order to meet that
standard, Brown must demonstrate an error that is clear or
obvious, that affected his substantial rights in that he probably
would not have been convicted absent the error, and that
seriously affected the fairness, integrity, or public reputation of
judicial proceedings. United States v. Christian, 673 F.3d 702, 708
(7th Cir. 2012).
Nos. 11-3864 & 12-1695 7
The government concedes that Spano was a dual capacity
witness in that some of his testimony regarding the nature of
dye packs could fall within Rule 702. See Id. at 712. We agree,
but a more precise delineation is necessary because not all of
the testimony relating to dye packs falls within Rule 702.
We have discussed in numerous opinions the differentia-
tion between lay and witness testimony. Lay testimony is
based upon one’s own observations, with the classic example
being testimony as to one’s sensory observations. Mendiola, 707
F.3d at 741. In Mendiola, we stated that the Rule 701 standard
is essentially an importation of the personal knowledge
requirement. In contrast, testimony moves from lay to expert
if an officer is asked to bring her law enforcement experience
to bear on her personal observations and make connections for
the jury based on that specialized knowledge. Christian, 673
F.3d at 709–10. This differentiation arises frequently in cases in
which officers testify as to the meaning of code words used in
drug transactions. See, e.g., United States v. Moreland, 703 F.3d
976, 983 (7th Cir. 2012); York, 572 F.3d at 420. In order to avoid
detection, participants in illegal drug transactions typically do
not directly refer to drug names or the amount of money
involved. Officers in subsequent criminal trials therefore are
often called to help interpret for the jury the meaning of the
words used in the tape or phone recordings. We have held that
where the witness’s testimony is based upon his own interac-
tions with the parties in the course of the investigation, then it
is based on personal knowledge and constitutes lay testimony.
Id. Where, however, it is based upon the officer’s experience
over the years in narcotics investigations, and the officer is
providing an opinion based on that experience as to what the
8 Nos. 11-3864 & 12-1695
code words mean in the present transaction, then it is expert
testimony. Id. We have held that such testimony which goes
beyond the observations that a normal person could make, and
is based instead on the specialized knowledge obtained
through experience in the field, must meet the requirements of
Rule 702 as expert testimony. York, 572 F.3d at 420; Sanchez v.
City of Chicago, 700 F.3d 919, 930 (7th Cir. 2012).
Applying those principles to the testimony of Spano yields
a mixed bag. There is no dispute that in testifying as to the
investigation itself, Spano was a lay witness. Brown asserts,
however, that Spano’s testimony regarding the dye packs was
expert testimony and that the government failed to follow the
requirements for such testimony in that it failed to disclose it
and failed to properly qualify Spano. As to some such testi-
mony, we agree. Spano testified that the dye packs were all
manufactured by one company, that they contained a timer
which could be set to detonate the dye pack within 10 to 30
seconds of exiting the bank, that the dye packs instantly
burned at 400 degrees, and that timers were set based upon the
environment of the bank so as to ensure they would go off
shortly after the exit from the bank so as to maximize the
possibility for witnesses outside the bank.
That testimony was based on technical, specialized knowl-
edge obtained in the course of his position, and was not based
on personal observations accessible to ordinary persons.
Accordingly, it fell within Rule 702, and the government
should have qualified Spano as an expert and followed the
disclosure rules prior to soliciting that testimony.
Nos. 11-3864 & 12-1695 9
Spano also was asked, however, whether he had ever
witnessed the aftermath of a dye pack exploding near a
person's skin. Spano then testified that he had observed that
situation on three to five occasions. Among those, he testified
that he had observed burns to the leg or genital area caused by
dye packs stuffed down pants or placed in pant pockets, and
a burn through a large puffy jacket caused by a dye pack
detonating in it. That testimony was nothing more than
Spano’s recollection of personal observations. It was in fact
precisely the type of sensory observations specifically identi-
fied as lay testimony in Rule 701. There is nothing in that
testimony that reveals opinions or knowledge that could not
equally have been observed by other persons in that situation.
The government could have ventured into the territory of
expert testimony here if it had gone one step further and
solicited an opinion as to the nature of Brown’s scars on his leg.
If the government had showed the picture of the leg and asked
Spano if based on his observations of past dye pack incidents,
those scars were of the type that would be caused by a dye
pack exploding, then that would have been the type of testi-
mony dependent on specialized knowledge and experience
that falls within expert testimony. The government did not do
so, and in fact Brown acknowledges in his brief that the
government did not present any testimony that the scars on his
leg were burns of any sort. The testimony by Spano concerning
burns caused by dye packs was therefore proper lay testimony,
and the district court committed no error in allowing the
testimony to be presented.
The question, then, is whether the introduction of the
admittedly expert testimony as to the nature of dye packs was
10 Nos. 11-3864 & 12-1695
itself enough to constitute plain error. We need not consider
whether the error could be considered plain, because Brown
cannot demonstrate that he would not have been convicted
absent the error, or that the introduction of that testimony
without complying with the expert testimony requirements
resulted in a miscarriage of justice. First, Brown does not argue
that Spano—who testified to having investigated between 800
and 1,200 bank robberies in his career—was actually unquali-
fied, nor does he question the validity of the information as to
the dye packs concerning the timers or the heat produced by
the packs upon detonation. In other cases, we have held that
the failure to raise any such challenge was itself enough to end
the matter. See United States v. Tucker, 714 F.3d 1006, 1016 (7th
Cir. 2013); York, 572 F.3d at 422. In fact, Brown even knew the
nature of the testimony that Spano would provide, because the
government had given Brown the exhibit concerning dye packs
that it intended to introduce during Spano’s testimony, thus
fulfilling some of the same purposes as the disclosure require-
ment. We need not rely on those grounds, however, because,
more significantly, none of that evidence was damaging to
Brown, and certainly none of it was so damaging as to consti-
tute error that is plain and that resulted in a miscarriage of
justice.
The harm alleged by Brown centers on the testimony that
dye packs contain timers that can be set to different times, and
that they burn at 400 degrees. The latter point is harmless here
because, as we have already held, Spano’s testimony as to his
observations of burns caused by exploded dye packs was
permissible lay testimony. Moreover, teller Stephanie Arndt
also testified without objection that dye packs possess sensors
Nos. 11-3864 & 12-1695 11
which initiate a countdown when they exit the bank, and that
the dye packs spew red dye and cause burns when they
explode. Thus, the problematic testimony by Spano added little
to the case. The precise degree at which the dye packs burn
was not of enough significance to have potentially impacted
the verdict. The testimony as to the timers was not similarly
cumulative, but it also was harmless error. In fact, that testi-
mony was helpful to Brown and was exploited by his defense
counsel to Brown’s advantage. Brown focuses on Spano’s
testimony that the timers could be set from 10 to 30 seconds,
and argues that it provided support for the government’s
testimony that one dye pack exploded long after the first one.
Spano testified, however, that the timer is set based on the
environment of the bank, so as to allow the packs to go off at
a point after the robbers exit the bank to maximize the poten-
tial for witnesses. Spano never testified that timers for one
bank would be set at two different times, and in fact his
explanation as to how the timing was determined would argue
against different timing on dye packs for the same bank
environment.
Brown’s counsel explored that line of reasoning in cross-
examining Spano, obtaining testimony from Spano that
supported an argument that the timers would have detonated
close in time to each other immediately after the robbers’ exit
from the bank, and not at the disparate times suggested by the
government’s version of events. Toward that end, Brown’s
counsel elicited testimony from Spano that: there was only one
U.S. manufacturer of dye packs; the timer is set based on the
environment so as to go off just after someone exited the
bank’s premises; the adjustment of the timer was based on that
12 Nos. 11-3864 & 12-1695
environment; and because people witnessed the robbers
running to the vehicle followed by a cloud of red dye, that
indicated there was a fairly short time in which that timer
device was set. He also established through cross-examination
that red dye is almost impossible to remove from clothing, and
that no one in the course of the investigation claimed to have
seen Brown in red-dye stained clothing.
Accordingly, Brown’s counsel elicited testimony from
Spano confirming that the timer would be set based on the
environment of the bank, so as to detonate shortly after exiting
the bank, minimizing danger to those inside the bank and
maximizing the potential for witnesses to the robbers’ exit.
Moreover, Brown’s defense counsel referenced Spano’s
testimony in closing argument, not for the purposes of distin-
guishing it, but as support for the argument that the timers
would be set based on the environment of the bank and would
not have detonated separately. Because the testimony was at
least as supportive of the defense position as that of the
government, and in fact arguably much stronger for the former
insofar as the timing issue, any errors in the inclusion of that
testimony were harmless and could not have resulted in a
miscarriage of justice.
Brown raises myriad other challenges to his conviction,
none of which have merit. First, he argues that the conviction
cannot stand because the jury relied on confusing jury instruc-
tions that improperly reduced the government's burden of
proof. Brown acknowledges that this objection was not raised
in the trial court, and therefore we review this claim only for
plain error.
Nos. 11-3864 & 12-1695 13
Brown asserts that an element of both of the charged
offenses was using or carrying a gun, but that there was no
evidence that Brown ever used or carried the gun in connection
with the robbery. He argues that the jury instruction shifted
the focus to the actions of his accomplice, allowing the jury to
convict if he or his accomplice committed the elements of the
offense, and using language of joint venture liability although
Brown was not charged with conspiracy. Brown acknowl-
edges, however, that a defendant need not commit each
element of the charged offense personally, and that a defen-
dant who knowingly aided and abetted the commission of the
offense may be guilty of that offense to the same extent as the
principal. He asserts, however, that the instructions did not
adequately require the jury to determine that he knowingly
aided the use of a firearm during the robbery. This argument
is doubly flawed. First, as Brown admits, the district court
issued an instruction concerning the knowledge necessary to
aiding and abetting liability. Thus, there was no failure to
adequately set forth the law. Second, the knowledge element
was never in dispute in this criminal case, and therefore even
if the instructions had been confusing as to that requirement,
Brown could not demonstrate plain error. Brown's theory of
the case was that he was not the person in the bank, not that he
participated in the robbery but was unaware of the use of the
firearm. Moreover, the firearm was brandished by the other
perpetrator immediately upon entering the bank, and was
visibly used throughout the robbery, and therefore there is no
basis whatsoever for any argument that the co-perpetrator
lacked knowledge of the firearm. See United States v. Woods,
148 F.3d 843, 847 (7th Cir. 1998). Thus, Brown could not
14 Nos. 11-3864 & 12-1695
demonstrate any miscarriage of justice under the plain error
standard.
Lastly, Brown challenges a plethora of closing remarks by
the prosecutor, contending that those statements taken as a
whole deprived him of a fair trial. Nearly all of those state-
ments, however, are not improper and therefore we need not
consider whether those statements, none of which yielded
objections at trial, constituted plain error. For instance, Brown
argues that no evidence was introduced at trial that the police
relied on Jones' statements to obtain a search warrant to
examine Brown's leg for burn marks, yet the government
suggested as much in closing arguments. That is not a fair
characterization of the prosecutor's statement. The prosecutor
stated:
Dante Jones knew that those—that that burn would
be there. He saw the burn afterwards. He told the
police what he saw. The police then get a search
warrant and examined Mr. Brown; and lo and
behold, Mr. Brown still bore the scars from that
incident and from that burn.
Trial Transcript Volume 2 at 34. That statement does not
indicate at all what was in the search warrant. It merely sets
forth the trial evidence that the police spoke with Jones who
informed them of the burn and that the police obtained a
warrant to search Brown for that burn. The implication that
Jones' statements formed the basis for the warrant is a natural
one from the trial testimony, but the government does nothing
more than set forth the evidence. Brown's attempt to character-
Nos. 11-3864 & 12-1695 15
ize that as testimony without any basis in the evidentiary
record is meritless.
Similarly, Brown argues that the government, without any
basis in the record, asserted that Jones was “very clear” in his
statements, when actually the trial testimony indicated that
Jones was initially ambiguous as to which leg was burned.
That is not prosecutorial misconduct; it is a proper argument
to the jury as to the testimony the jury heard, and the jury
could itself weigh whether the testimony was in fact clear or
not. Those are the first two of many statements challenged by
Brown, and the rest fare no better. With one exception, the
remaining challenges represent similarly strained readings of
proper closing arguments, and therefore do not present any
basis for attacking his conviction under either his theories of
prosecutorial misconduct or his theory that the prosecutor
imposed an improper burden of proof. The record simply does
not support any non-frivolous argument of such errors. We
address only the arguable error.
Brown identifies one statement that constituted an im-
proper expression of the prosecutor's personal belief as to a
witness's credibility, in the following statement on rebuttal:
You're going to have to assess for yourselves what
you think of Mr. Jones and his demeanor. I thought
he was—He seemed very candid. He said, for
example, he said, there was a question, were you
angry about what Brown had done. He said yes. He
didn't say, well, no, that wasn't really anything. …
Trial Transcript Volume 2 at 46–47. The prosecutor erred in
giving his own personal opinion as to whether Jones was
16 Nos. 11-3864 & 12-1695
credible. In the context of the statement and the trial as a
whole, however, that did not rise to plain error. First, the
improper statement was couched in a discussion of what the
evidence demonstrated as to Jones’ credibility, rather than a
personal statement based on the prosecutor's exposure to Jones
as a person. Moreover, that was one statement in a series of
points made by the prosecutor as to how the evidence sup-
ported Jones' version of events, and the focus overwhelmingly
was on the trial evidence. The prosecutor also made clear at the
same time that the jury was going to assess for itself whether
Jones was credible. Finally, as Brown acknowledges, the
district court instructed the jurors that the arguments of
counsel are not evidence, that the jurors are the sole judges of
credibility, and that their own recollection of the evidence
controls. The sole improper statement was not significant
enough to satisfy the plain error standard, and the other
closing argument statements were arguments based on the
evidence not expressions of personal opinion. Accordingly,
Brown has failed to raise any viable challenge to his conviction.
We turn, then, to Jones, who pled guilty in the district court
and raises only a challenge to his sentence in this appeal. Jones
acknowledges that he was a career offender for purposes of
determining the applicable Sentencing Guidelines range. As a
career offender he faced a Guidelines range of 188 to 235
months. The district court, however, determined that it did not
want to apply the career offender classification. Without the
career offender consideration, Jones would have faced a
Guidelines range of 100 to 125 months, and with a thirty
percent reduction under U.S.S.G. § 5K1.1 for his substantial
assistance to the government in other cases, he claims the only
Nos. 11-3864 & 12-1695 17
reasonable sentence would fall within the 70 to 85 month
range.
Jones errs as an initial matter in his argument as to the
appropriate Guidelines range. By his own admission, Jones
qualified for classification as a career offender, and therefore
his appropriate range under the Guidelines was 188 to 235
months. The district court determined that the full impact of
the career offender classification was inappropriate for him.
That does not, however, negate it as a consideration, nor does
it alter the Guidelines range to the lower amount. It is not, as
Jones would assert, an all or nothing proposition. The court
could determine not to apply the full amount of the career
offender increase, but still consider that status or his criminal
history in determining an appropriate middle ground. United
States v. Liddell, 543 F.3d 877, 884–85 (7th Cir. 2008) (noting that
the district court is free to reject the advice of the Guidelines,
including the career offender guideline). That is precisely what
the court did here, stating that although Jones technically
ought to be sentenced under the Guidelines as a career
criminal offender, the actual sentence should be tempered both
by the grant of the substantial assistance departure under
§ 5K1.1 and the fact that the career offender status overstates
what is appropriate. The court concluded that some incremen-
tal increase was necessary based on Jones’ career criminal
status, but not the full breadth and depth of the Guidelines
increase. Weighing all of the factors, the court reached a
sentence of 100 months. That is a proper exercise of the court’s
discretion, and is even less than the Guidelines range. See
United States v. Smith, 721 F.3d 904, 908 (7th Cir. 2013) (noting
that we apply a presumption of reasonableness to sentences
18 Nos. 11-3864 & 12-1695
within the Guidelines range). Jones is simply wrong in sug-
gesting that a reluctance to impose the entire career offender
amount negated that factor from consideration at all. The court
imposed a below Guidelines sentence, and Jones has failed to
demonstrate that the sentence was outside the bounds of
reason or that it was based on consideration of improper
factors or a misapplication of the Guidelines. See Smith, 721
F.3d at 908.
Accordingly, Brown’s challenge to his conviction and Jones’
challenge to his sentence are without merit.
AFFIRMED.