United States v. Books

914 F.3d 574

UNITED STATES of America, Plaintiff-Appellee,

v.Scott BOOKS, Defendant-Appellant.

No. 17-3493

United States Court of Appeals, Seventh Circuit.

Argued November 9, 2018

Decided January 29, 2019

Kevin Crowley Knight, Attorney, Office of the United States Attorney, Rock Island, IL, Paul Morris, Attorney, Office of the United States Attorney, Peoria, IL, for Plaintiff-Appellee.

Robert A. Alvarado, Attorney, Office of the Federal Public Defender, Peoria, IL, Michael Ajay Chandra, Attorney, Office of the Federal Public Defender, Springfield, IL, for Defendant-Appellant.

Before Bauer, Brennan, and Scudder, Circuit Judges.

Scudder, Circuit Judge.

On trial for bank robbery, Scott Books chose not to testify in his own defense and was found guilty and sentenced to 180 months' imprisonment. He now challenges two pretrial decisions by the district court. The first allowed eyewitness testimony at trial from the two bank tellers that Books alleged based their identification of him as the robber not on personal knowledge, but rather on information improperly supplied by a police detective. The second ruling would have allowed the government, had Books chosen to testify at trial, to impeach him with physical evidence directly tying him to the robbery—evidence the police learned of (and then recovered) only as a result of a confession the district court separately had determined was unlawfully coerced.

Neither challenge succeeds. The district court did not err in finding the eyewitness identifications reflected the tellers' firsthand knowledge of Books, and thus allowing their testimony at trial was entirely proper. Nor can we conclude that the district court’s conditional impeachment ruling, even if wrong on the law, mandates reversal in light of the overwhelming weight of evidence against Books. So we affirm.

I

A

On July 28, 2016 a man robbed the Land of Lincoln Credit Union in Normal, Illinois. Dressed in a black hooded sweatshirt, wearing a mask and neon gloves, the robber approached the counter and, while motioning toward the drawer with what appeared to be a black handgun, demanded "all the money." The robbery lasted all but 20 seconds, with the offender making off with $18,000 and fleeing in a Buick SUV.

Two tellers recognized the robber’s voice and mannerisms and immediately identified him as Scott Books—a long-time customer of the credit union. Holly Bateman told her supervisor (and later the police) she was 99% certain Books was the robber because she had interacted with him on at least six prior occasions. The second teller, Susan Phelps, agreed with Bateman’s identification of Books as the offender. A third witness, James Teidman, was driving by the bank when he saw the robber running from the bank with a gun, only then to speed away in a Buick SUV.

The police arrested Books the next day. After waiving his Miranda rights and agreeing to an interview, he confessed to the robbery, while also telling the police where they could find the gloves, clothing, and fake gun he used. The police found these items exactly where Books described, and in time a grand jury indicted Books for the robbery.

B

The district court held a series of pretrial hearings to determine the admissibility of evidence contested by Books. Three of those rulings are significant to this appeal.

First , the district court suppressed Books’s confession, finding that the police officers overstepped and overcame Books’s will by threatening to arrest his wife and take his children into custody if he did not own up to his role in the robbery—rendering the confession involuntary. The court suppressed both the confession and its physical fruits—specifically, the clothing, gloves, and fake gun the police recovered based upon Books telling them where to look.

Second , the district court denied Books’s motion to prevent the two bank tellers (Bateman and Phelps) from testifying at trial. Books had sought to exclude their testimony on the basis that the police detective who investigated the robbery improperly tainted their identifications when, a day after the robbery, he allegedly told both witnesses that Books had confessed to the crime. The government disagreed, taking the position that the detective in no way revealed Books’s confession and thus in no way influenced the tellers' clear and definitive identification of Books as the robber. The district court held a hearing, received testimony from the tellers and detective, and found it "clear from th[e] record that [both tellers] have a truly independent source of identification of [Books] other than any suggestion that would have been put in their mind by the officer." Accordingly, the district court permitted the tellers to testify at trial.

Third , the district court considered but reserved definitively ruling until trial on the government’s motion for permission to impeach Books with the fruits of his confession in the event he chose to testify. Books opposed the motion and urged the district court to hold that the price for the police unlawfully coercing his confession should be the suppression of all incriminating evidence (his admission and the physical fruits) for all purposes, including impeachment. The district court said it was inclined to allow some impeachment but reserved a final ruling unless and until Books chose to testify and the government sought to impeach him on cross-examination with his prior statements describing the whereabouts of the clothing he wore during the robbery. The district court cast its ruling this way: "[I]f and when we get to that point [of the trial], any questions that the government wished to ask the defendant if he testifies, I would have to hear exactly what the questions are outside the presence of the jury so there could be specific objections."

C

In the end, Books chose not to testify at trial, and thus neither his coerced confession nor the resulting physical fruits came into evidence. The government nonetheless presented a strong case, including testimony from these witnesses:

• Bank teller Holly Bateman identified Books as the robber. She testified that she knew Books from her work at the credit union and immediately recognized him as the robber—so much so that she almost said "Scott, can you remove your mask?" Bateman told the jury that she "instantly" recognized Books’s voice and likewise knew it was Books from his distinct mannerisms. Asked at trial about her confidence level that Books committed the robbery, Bateman testified that she was 110% sure because the incident had replayed over and over in her mind.

• Susan Phelps, the second bank teller, also identified Books as the robber. While not as fast as Bateman to recognize Books during the robbery, Phelps testified she was confident Books was the offender based on his unique mannerisms, including his walk and jittery disposition.

• Phillip Meyer, a friend and former coworker of Books, testified that he had received a text message from Books on the day of the robbery or the day before asking, "I wonder what bank I should rob today?"

• Todd Hogan, the bank’s vice president, testified that he remembered teller Holly Bateman calling him immediately after the robbery to tell him she was 99% sure the robber was Books. Hogan also explained that Books’s business account had been flagged in the bank’s system on multiple occasions due to attempts to deposit checks backed by insufficient funds.

• James Teidman testified that he was driving by the credit union when the robbery occurred and saw a Buick SUV, the same model later tracked to Books’s residence, flee the scene.

While Books chose not to testify, his counsel vigorously cross-examined the government’s witnesses. When it came to tellers Bateman and Phelps, defense counsel challenged their recollection of the robbery, probed the reliability of their identifications of Books and the getaway car, and examined their memory of the robber’s dress, voice, and mannerisms—all in an effort to question their overall confidence that Books was the offender. At no point during the trial did Books’s counsel or the government refer to Books’s confession or to the police detective’s (allegedly impermissible) interaction with the two tellers. The jury returned a guilty verdict.

II

A

Books challenges the district court’s pretrial ruling denying his motion to preclude the two tellers from testifying at trial on the basis that the police detective allegedly tainted their eyewitness identifications by telling them that he had confessed to the robbery. This misconduct, Books contends, violated his Fifth Amendment right against self-incrimination. He further argues that the district court’s pretrial ruling too circumscribed his Sixth Amendment right to cross-examine the tellers at trial. The facts belie both contentions.

While all agree that our review of legal issues is de novo , the parties dispute the legal standard that governs the admission at trial of the bank tellers' identification testimony. Books invites us to follow Kastigar v. United States , and thereby place the burden on the government to show that the tellers' testimony was "derived from legitimate independent sources" and, as a result, not unduly influenced by the police detective. See 406 U.S. 441, 461–62, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972). The government, on the other hand, urges us to read Kastigar as more narrowly applying to, and not beyond, the setting that gave rise to its holding—circumstances in which a witness testifies pursuant to a grant of immunity. See id . The government instead asks us to employ the less onerous, due-process based standard found in cases like Neil v. Biggers , 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), where the focus is more simply on the reliability of in-court identification testimony with the defendant (not the government) bearing the initial burden of showing that the government did something to taint the identification. See also, e.g. , United States v. L'Allier , 838 F.2d 234, 239 (...