United States v. Crotteau, Robert P. ( 2000 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 00-1032
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ROBERT P. CROTTEAU,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 99 CR 70--John C. Shabaz, Chief Judge.
Argued May 17, 2000--Decided July 10, 2000
Before BAUER, COFFEY and KANNE, Circuit Judges.
COFFEY, Circuit Judge. On July 14, 1999, a grand
jury returned a one-count indictment charging the
defendant-appellant, Robert Crotteau, with
"knowingly and unlawfully [taking], by force and
violence, and by intimidation, from the person
and presence of others, money totaling
approximately $1,430," in violation of 18 U.S.C.
sec.sec. 2113(a) and (d), and after a jury trial,
he was found guilty as charged. Following the
sentencing hearing, the trial court sentenced him
to 87 months’ imprisonment, restitution in the
amount of $1430, a $100 special assessment, and
5 years’ supervised release. On appeal, Crotteau
challenges: 1) an evidentiary ruling granting the
government’s motion to exclude the defendant’s
psychologist from offering expert testimony; 2)
the court’s ruling striking the testimony of
defendant’s proffered expert regarding the height
of the bank robber; 3) the sufficiency of the
evidence supporting his conviction; and 4) the
content of a note sent to the jury by the trial
judge. We affirm.
I. BACKGROUND
In late 1996 and early 1997, the defendant,
Robert Crotteau, was living at 2202 26th Avenue,
Rice Lake, Wisconsin,/1 approximately 3 miles
by car, and 1 miles by snowmobile, from the town
of Brill, Wisconsin. A major state snowmobile
trail ran from the back of the property into
Brill.
During late 1996 and early 1997, Crotteau
talked with David Demars about the possibility of
robbing a bank, specifically the Brill State
Bank, because both of them were in need of money.
Demars and Crotteau concluded that it would be
best to rob the bank in the early morning when
the tills were still full of money. They also
concluded that it would be best to rob the bank
when the weather was snowy because it would be
harder for law enforcement to track them, or to
even respond to a robbery. Also during the
conversation, Demars and Crotteau discussed using
a snowmobile as a getaway vehicle. Finally, they
discussed the best weapon to use and Demars
suggested using Crotteau’s black BB gun, which
looked like a semi-automatic pistol, because
Demars thought that a prison sentence would be
shorter if a BB gun was used instead of a real
gun. During this time period, Crotteau also had
a conversation with his friend, Daniel Swanson,
in which the defendant discussed robbing a bank
in bad weather.
1. The Brill State Bank Robbery
January 10, 1997, was a windy, snowy day in the
Rice Lake, Wisconsin area, and at approximately
9:20 a.m., a man wearing dark knit gloves, a
hooded army-type jacket, and a ski mask, exposing
only his eyes, entered the Brill State Bank,
carrying a black gun that resembled a semi-
automatic pistol in his left hand and a cream
colored canvas bag with some red on its side in
his right hand. While displaying the weapon to
the bank teller, Janice Saffert, the man demanded
"I want your 20s in the bag." Saffert complied
and placed $1430 into the bag, and upon receiving
the bag of money, the robber fled the bank on
foot and made his escape, apparently unobserved
by any witnesses.
Immediately following the robbery, Saffert
reported to the police that the bank robber was
approximately 5’2" in height, but after viewing
the bank surveillance video and seeing that the
robber was leaning over on the teller’s counter,
she stated that the robber’s height was 5’8" or
5’9". She also described for the authorities the
gun used by the robber, his clothes, gloves,
mask, body shape, voice, and eyes, as well as his
race and approximate age.
2. The Victim’s Report of the Robber’s Return to
the Bank
On October 17, 1997, the defendant, Crotteau,
went to the Brill State Bank to exchange coins
for currency and the teller that assisted
Crotteau on this occasion happened to be Janice
Saffert, the victim teller from the January 10,
1997, robbery. On this October day, Crotteau had
a bag in his right hand, apparently similar to
the one used in the robbery, which he placed on
the teller’s counter. Upon seeing Crotteau at her
counter, Saffert thought to herself, "Oh my God,
I think he’s the one." According to Saffert, her
heart was beating fast, her hands became sweaty,
and her knees were wobbly. As she was counting
the coins for Crotteau, Saffert tried to get a
closer look at him. When she returned to her
teller station after counting the coins, she
asked Crotteau a few questions, including his
name, in order that she could hear his voice and
compare it with the robber’s. After Crotteau left
the bank building, Saffert informed her co-
workers that he was the robber. One of her co-
workers followed Crotteau out of the bank and
wrote down his vehicle license plate number, in
hopes of assisting law enforcement in
apprehending him.
3. The FBI Investigation
As a result of the encounter on October 17,
1997, Janice Saffert was certain that Crotteau
was the man who robbed her on January 10, 1997.
The authorities were then notified, and the FBI
commenced an investigation of Robert Crotteau as
a possible suspect. Crotteau and many of his
family members and friends were interviewed by
the FBI and local law enforcement officials.
David Demars told investigators that, after the
January 1997 Brill bank robbery, Crotteau gave
him cash in amounts ranging from $20 to $80 for
items he wanted to buy on five or six occasions.
Prior to the robbery, Demars and Crotteau
occasionally hunted for cigarette butts to smoke,
but after the robbery, there were times when
Crotteau bought packs of cigarettes for Demars
and his wife. Additionally, whereas in late 1996
and early 1997 the two men would often talk about
robbing banks to get some extra money, after the
bank robbery, Crotteau would either change the
subject or ignore Demars whenever he brought up
the possibility of committing a bank robbery.
Finally, Demars viewed the bank surveillance
video of the robbery and concluded that, based on
the robber’s build, his walk, and the way he
carried himself, the robber looked very much like
Robert Crotteau.
David Demars’ wife, Crystal Demars, was also
interviewed by law enforcement authorities
regarding the robbery. She had known Crotteau for
six years at the time of the interview and had
lived with him for some time at the house in Rice
Lake. She viewed the surveillance video and also
concluded that, based on the way the robber
walked and carried himself, he was Robert
Crotteau.
Jennifer Burt, Crotteau’s former girlfriend who
lived with him on the Demars’ property at the
time of the Brill State Bank robbery, was
interviewed by local law enforcement officers in
the Rusk County, Wisconsin jail where she was
incarcerated at the time. The officers showed
Burt both the October 17, 1997 bank video and the
video of the robbery on January 10, 1997. Without
hesitation, Burt identified the individual in the
October 17 surveillance video as Robert Crotteau.
When shown the video of the robbery, her demeanor
changed, she became very quiet, and she looked
down at the floor, stating that she did not see
anything that she recognized in the video. Burt
viewed the video a second, and then a third,
time, but both times she told the officers that
she did not recognize anything in the video. As
Burt was led back to her cell, she began to cry
and was brought back to the video room, where she
told the officer that it appeared to her that the
person concealing his identity in the bank
robbery video was Robert Crotteau. Burt advised
the officer that she was due to be released from
jail soon and that she did not want to be called
to testify.
David Apfel, also a close friend of Crotteau,
stated during an interview with the FBI that
Crotteau told him that he (Crotteau) had to be
careful because the FBI was watching him for the
Brill State Bank robbery. When Apfel asked
Crotteau why he was not spending the money he had
obtained in the heist, the defendant said
"something like maybe some day or something like
that."
David and Crystal Demars and Jennifer Burt all
told the FBI that Crotteau had access to, and
occasionally was observed wearing, green Army
jackets, snowmobile boots, black stretch gloves,
and a snowmobile mask. They also stated that he
had a BB gun that looked exactly like the one
seen in the Brill bank robbery surveillance
video. Burt, Crotteau’s girlfriend, had a cream-
colored bag with "Marlboro" in red letters on the
side when she lived with him and she left it with
the defendant after she moved out.
When the FBI interviewed Crotteau in July of
1999, he told them that in January of 1997, he
was 18 years old, 5’9" to 5’10" tall, and weighed
approximately 150 pounds. He also denied that he
had ever jokingly, much less seriously, discussed
robbing a bank with his friends. Crotteau also
told the FBI that he was not involved in the
Brill State Bank robbery, had never worn an Army-
type jacket or Parka, and that he never owned nor
wore snowmobile-type boots with the fur lining
sticking out at the top. Furthermore, he insisted
that he never had a canvas bag with red lettering
on it, and that he had never seen such a bag nor
had he ever seen his girlfriend in possession of
such a bag. Crotteau did admit to the FBI that he
owned BB pistols that looked like semi-automatic
weapons (like the one used in the Brill bank
robbery).
4. Crotteau’s Trial By Jury
On October 12 and 13, 1999, Crotteau was
brought to trial before a jury in the Western
District of Wisconsin. At the final pre-trial
hearing on October 8, 1999, the government filed
a motion to exclude the defendant’s psychologist
from testifying as an expert on the reliability
of eyewitness identification. The district court
reserved ruling on the motion until such time as
it could be considered in light of the evidence
offered at trial. The matter was again brought up
on the second day of trial, October 13, 1999,
after the close of the government’s case. After
defense counsel made an offer of proof, the trial
court granted the motion to exclude the
psychologist’s testimony on the ground that it
would not be helpful to the jury.
During the course of the trial, the defense
called Ray Miller, a friend of Crotteau, to offer
expert testimony on the height of the bank robber
and the defendant by comparing the two bank video
surveillance tapes offered at trial (one of the
robbery and the other of Crotteau’s October 17,
1997 trip to the bank to cash in his spare
change). After the jury had heard Miller’s
testimony on direct and the government had cross-
examined him, the government moved to strike
Miller’s testimony on the grounds that he was not
a qualified expert under Fed. R. Evid. 702/2 and
that his opinion was not admissible under Fed. R.
Evid. 703./3 The trial judge granted the
government’s motion to strike the testimony and
instructed the jury accordingly.
At the close of the government’s case in chief,
Crotteau moved for a judgment of acquittal under
Rule 29./4 The judge denied Crotteau’s motion,
and the case went to the jury.
The jury started its deliberation at
approximately 1:00 p.m. on October 13, 1999. At
3:57 p.m., the jury sent a written note
requesting a definition of reasonable doubt. The
trial judge met with the parties and, after a
brief argument, sent a note back to the jury at
4:45 p.m., stating as follows:
Members of the jury. No definition of reasonable
doubt is available. The phrase is self
explanatory and is its own best definition. Will
you also join us in court at 6 p.m. for
adjournment until 9 a.m. tomorrow.
Although he objected to the reasonable doubt
statement and urged the court to craft a
definition for the jury, counsel for Crotteau did
not object to the last sentence of the note
(regarding adjournment) when the court read the
proposed note to the parties prior to sending it
to the jury. At 5:30 p.m., the jury found
Crotteau guilty of the robbery of the Brill State
Bank on January 10, 1997.
Crotteau appeals from that conviction on
numerous grounds. Specifically, he asks us to
determine: 1) whether the district court abused
its discretion by excluding expert testimony on
the reliability of the eyewitness identification
of the defendant made by the victim bank teller
(Saffert); 2) whether the trial court abused its
discretion by striking the testimony of a defense
witness (Ray Miller), offering expert testimony
as to the height of the bank robber; 3) whether
the evidence is sufficient to sustain Crotteau’s
armed bank robbery conviction; and 4) whether the
trial judge committed plain error by informing
the jury, approximately four hours into its
deliberations, that the court planned to adjourn
for the day at 6:00 p.m.
II. DISCUSSION
A. Exclusion of Expert Testimony Regarding
Reliability of Eyewitness Identification
Initially, Crotteau contends that the district
court erred when it excluded, as unhelpful to the
jury, a psychologist’s expert testimony on the
reliability of eyewitness identification. The
expert testimony was specifically designed to
discredit the identification of Crotteau as the
robber made by the victim bank teller, Janice
Saffert, by demonstrating that Saffert may have
suffered from a form of post-traumatic stress
disorder as a result of the bank robbery. Thus,
when Crotteau walked into the bank on October 17,
1997, carrying a bag similar to the one used in
the robbery, Saffert experienced a flashback of
sorts and would thereby not have been able to
accurately identify Crotteau as the robber.
Given that there is no allegation that the
trial judge improperly applied the framework set
forth in Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579 (1993), we review the trial
judge’s decision to exclude expert testimony for
an abuse of discretion. See United States v.
Hall, 165 F.3d 1095, 1101 (7th Cir.), cert.
denied, 119 S. Ct. 2381 (1999). Thus, our review
focuses on the issue of whether the trial judge
abused his discretion in not allowing this
defense expert to testify.
As this court has explained, we afford great
deference to a judge’s evidentiary rulings:
We review a trial judge’s determination of the
admissibility of evidence under the abuse of
discretion standard. We afford great deference to
the trial court’s determination of the
admissibility of evidence because of the trial
judge’s first-hand exposure to the witnesses and
the evidence as a whole, and because of the
judge’s familiarity with the case and ability to
gauge the impact of the evidence in the context
of the entire proceeding. Indeed, [a]ppellants
who challenge evidentiary rulings of the district
court are like rich men who wish to enter the
Kingdom: their prospects compare with those of
camels who wish to pass through the eye of the
needle. Because we give special deference to the
rulings of the trial judge[,] [a defendant]
obviously "carries a heavy burden. In this
context, we will not reverse unless the record
contains no evidence on which [the district
court] rationally could have based [its]
decision, or where the supposed facts found are
clearly erroneous. Moreover, if an error in the
admission or exclusion of evidence was committed
during the trial, the court will grant a new
trial only if the error had a substantial
influence over the jury, and the result reached
was inconsistent with substantial justice.
United States v. Walton, 2000 WL 767891, *4 (7th
Cir. June 14, 2000) (internal citations and
quotations omitted) (brackets in original).
In Hall, this court identified three
considerations which supported the trial court’s
exclusion of the proffered expert testimony
regarding the reliability of eyewitness
identifications in that case: 1) the opportunity
for cross-examination; 2) the use of a cautionary
instruction; and 3) the presence of corroborating
evidence. See Hall, 165 F.3d at 1107-08. Each of
these three factors is present in the instant
case and each supports the decision of the trial
judge to exclude the testimony of the expert
psychologist.
As we stated before, "any weaknesses in
eyewitness identification testimony ordinarily
can be exposed through careful cross-examination
of the eyewitnesses." Hall, 165 F.3d at 1107
(citations omitted). Furthermore, Crotteau’s
counsel cross-examined Saffert extensively on the
potential problems of her eyewitness testimony
and was given ample latitude to argue this to the
jury. As the district judge noted, the victim
bank teller was on the stand, on direct and
cross, for a total of approximately one and one-
half hours. Defense counsel led her step-by-step
through the day that Crotteau came into the bank
on October 17th, with the teller admitting that
her heart was racing, her knees were wobbly, her
hands were sweating, and that she immediately
thought Crotteau was the bank robber before she
even heard his voice. Crotteau’s counsel argued
these facts to the jury, along with the fact that
Crotteau came into the bank some 9 months after
Saffert had been the robbery victim, and
encouraged the jury to discredit the teller’s
eyewitness identification based on these facts.
It was within the jury’s province to choose to
credit or discredit Saffert’s testimony based on
all of the facts before it. See id. ("[W]e
believe that the credibility of eyewitness
testimony is generally not an appropriate subject
matter for expert testimony because it influences
a critical function of the jury--determining the
credibility of witnesses.") (citation omitted).
Unfortunately for Crotteau, the jury elected to
believe Saffert’s testimony.
Additionally, the two instructions given to the
jury by the trial judge regarding the credibility
of the witnesses were certainly sufficient. The
first was an instruction regarding the testimony
of witnesses, taken directly from Seventh Circuit
Pattern Instruction Section 1.03, and the second
was a cautionary instruction drawn from Hall. The
second instruction reads as follows:
You have heard testimony of an identification of
a person. Identification testimony is an
expression of belief or impression by the
witness. You should consider whether, or to what
extent, the witness had the ability and
opportunity to observe the person at the time of
the offense and to make a reliable identification
later. You should consider the circumstances
under which the witness later made the
identification.
The government has the burden of proving beyond
a reasonable doubt that the defendant was the
person who committed the crime charged.
These two instructions properly cautioned the
jury to carefully weigh all of the circumstances
surrounding Saffert’s identification of Crotteau
as the robber before reaching any conclusion.
Finally, there was substantial corroborating
evidence to implicate Crotteau as the robber of
the Brill State Bank. Again in Hall, we stated
that when there is corroborating evidence, expert
testimony regarding the reliability of eyewitness
identification is not necessary. See id.; see
also United States v. Kime, 99 F.3d 870, 885 (8th
Cir. 1996) (court reluctant to find abuse of
discretion in district court’s decision to
exclude expert testimony on eyewitness
identifications "unless the government’s case
against the defendant rested exclusively on
uncorroborated eyewitness testimony"). The
testimony of David Demars, David Apfel, and
Daniel Swanson all served to corroborate
Saffert’s identification of Crotteau as the
robber by relating incriminating statements and
actions made by Crotteau both before and after
the robbery. David Demars, Crystal Demars, and
Jennifer Burt also each identified Crotteau as
the bank robber in the surveillance video based
on the way the robber walked and carried himself.
Finally, Crotteau’s own statements to the FBI
denying ever having owned or worn clothing worn
by the robber corroborated the teller’s
identification because several other witnesses
reported having seen Crotteau wearing such items
on previous occasions.
Thus, we hold that the trial court did not
abuse its discretion in excluding the expert
testimony of the psychologist. Such testimony was
not necessary because the defense extensively
cross-examined the eyewitness regarding the
reliability of her identification, the
experienced trial judge provided the jury with
clear, concise, and unambiguous cautionary
instructions on the reliability of eyewitness
identifications, and the teller’s identification
of Crotteau as the robber was substantially
corroborated by other testimony offered at trial.
B. The Striking of Proffered Expert Testimony
Regarding the Height of the Bank Robber
Crotteau next contends that the district court
abused its discretion by striking the testimony
of a would-be expert witness, Ray Miller,
regarding the height of the bank robber in the
video, on the grounds that the witness was not
qualified as an expert under Fed. R. Evid. 702
because he lacked the education, knowledge,
training, experience, and methodology necessary
to qualify him as an expert. We review the
district judge’s decision to exclude expert
testimony for an abuse of discretion. See Hall,
165 F.3d at 1101.
Ray Miller testified before the jury that he
had examined the video surveillance tapes from
the January 10, 1997 bank robbery, and from
Crotteau’s visit to the bank on October 17, 1997.
Miller testified that based on his viewing of the
tapes and some measurements that he took, he
determined that the robber on the January tape
was only 5’2", while Crotteau appeared to be
approximately 5’8" on the October tape.
Miller testified that he left high school after
his freshman year, was home-taught, and
subsequently obtained his GED, that he had
trained himself on the computer software that he
used to reach his findings regarding the height
of Crotteau and the robber, that he had but two
years of experience with the personal computer,
and that he would not call himself an "expert" in
the field in which he was testifying.
Furthermore, Miller admitted that he relied on
information, such as a poor quality copy of the
tapes rather than the originals, that an expert
in the field would not have relied upon. Miller
also offered his opinion that an expert in the
field would likely have taken more measurements
than the scant number taken by Miller in reaching
his conclusions. In fact, Miller admitted that
although he visited the bank to take some
measurements, he did not measure the teller’s
counter, nor did he measure the victim teller
herself. Thus, the government moved to strike
Miller’s testimony and the judge granted the
government’s motion, finding that Miller was not
qualified as an expert under Fed. R. Evid. 702.
We hold that the trial court did not abuse its
discretion in striking Miller’s testimony. Based
on the record before us and the facts elicited at
trial regarding Miller’s lack of qualifications
and methodology as described above, we agree with
the trial judge’s ruling that Miller was not
qualified to offer expert testimony on the height
of the bank robber and Crotteau.
C. Sufficiency of the Evidence
Crotteau asks this court to reverse his
conviction, claiming that the district judge
erroneously denied his motion for acquittal
pursuant to Rule 29 of the Federal Rules of
Criminal Procedure. We review the judge’s denial
of a motion for acquittal de novo. See United
States v. Griffin, 194 F.3d 808, 816 (7th Cir.
1999), cert. denied, 120 S. Ct. 1546 (2000).
"Viewing the entire record and accompanying
inferences in the light most favorable to the
Government, we affirm the district court’s ruling
as long as any rational trier of fact could have
found the essential elements of the crime beyond
a reasonable doubt." Id. (citing United States v.
Hach, 162 F.3d 937, 942 (7th Cir. 1998), cert.
denied, 119 S. Ct. 1586 (1999)). Where, as here,
a defendant asks us to conclude that the evidence
was insufficient to support his conviction, he
faces a very high hurdle
because [w]hen reviewing a conviction for
sufficiency of the evidence, we neither reweigh
the evidence nor do we substitute our judgment of
the facts for that of the factfinder. We consider
the evidence in the light most favorable to the
prosecution, making all reasonable inferences in
its favor, and affirm the conviction so long as
any rational trier of fact could have found the
defendant to have committed the essential
elements of the crime. Reversal is warranted only
when the record is devoid of any evidence,
regardless of how it is weighed, from which a
jury could find guilt beyond a reasonable doubt.
United States v. Hall and Walker, 2000 WL 626721,
at *7 (7th Cir. May 16, 2000) (internal citations
and quotations omitted) (brackets in original).
Much of Crotteau’s argument regarding the
sufficiency of the evidence centers around his
apparent belief that many of the witnesses were
not credible and their identifications of
Crotteau were unreliable. He claims that Janice
Saffert’s eyewitness identification of Crotteau
is unreliable because she could not remember the
shape of the robber’s eyes, she admitted that by
listening to the voice of the robber he could
have been one of her sons, and she described that
the robber held his gun in his right hand when it
was actually his left. Crotteau also argues that
Crystal Demars’ and Jennifer Burt’s
identifications of Crotteau as the robber in the
bank surveillance tape were unreliable because
both women testified that they were not
absolutely certain that it was Crotteau in the
video. Finally, he asserts that David Demars,
Daniel Swanson, and David Apfel provided no
evidence that Crotteau was the robber because
they offered no testimony concerning any steps
that were taken in preparation to rob the bank,
but merely testified as to portions of
discussions in which the men discussed the
possibility of robbing the Brill State Bank.
We reject Crotteau’s argument that the evidence
was insufficient to support his conviction. All
of his attacks on the evidence essentially are
challenges to the credibility of the witnesses;
attacks which are properly made before the jury,
and not this court. See United States v.
Woolfolk, 197 F.3d 900, 904 (7th Cir. 1999)
("Questions of witness credibility are reserved
for the jury, and its assessments will not be
second guessed by an appellate panel.").
Unfortunately for Crotteau, the jury resolved the
credibility questions against him.
Based upon our review of the record, we reject
Crotteau’s claim on the sufficiency of the
evidence because there was more than ample
evidence from which a rational factfinder could
have concluded beyond a reasonable doubt that
Crotteau robbed the Brill State Bank in January
of 1997.
D. The Trial Court’s Alleged Jury Coercion
After the jury had been deliberating for nearly
three hours, it sent a written note to the court
requesting a definition of reasonable doubt. The
trial judge met with the parties to discuss how
to proceed and, after a brief argument, sent a
note in response to the jury at 4:45 p.m.,
stating as follows:
Members of the jury. No definition of reasonable
doubt is available. The phrase is self
explanatory and is its own best definition. Will
you also join us in court at 6 p.m. for
adjournment until 9 a.m. tomorrow.
Counsel for Crotteau did not object to the last
sentence of the note (regarding adjournment) when
the court read the proposed note to the parties
before sending it to the jury. At 5:30 p.m., the
jury sent a note stating that it had reached a
verdict.
Crotteau contends that the trial judge coerced
a guilty verdict when it informed the jury at
approximately 4:45 p.m. that deliberations would
end for the day at 6:00 p.m. and resume the
following morning. Because Crotteau did not
object to the note before the district court, we
review Crotteau’s claim for plain error. See
United States v. Staples, 202 F.3d 992, 994 (7th
Cir. 2000).
In determining whether the court coerced the
jury into returning a guilty verdict, "[t]he
relevant inquiry . . . is whether the court’s
communications pressured the jury to surrender
their honest opinions for the mere purpose of
returning a verdict." United States v. Kramer,
955 F.2d 479, 489 (7th Cir. 1992) (citations
omitted). Instructions which are neutral and
simply instruct the jury to continue in its
deliberations do not warrant reversal. Id.
We hold that the language that the district
court used in its note regarding the times for
adjournment for the day and re-adjournment for
the next day did not, in any manner, coerce the
jury into hastily reaching a guilty verdict. The
note was neutral and favored neither the
prosecution nor the defense; instead, the note
merely responded to the jury’s earlier question
requesting a definition of reasonable doubt and
advised the jury of the court’s schedule.
This court has previously stated our approval
of a schedule in which a judge adjourns "the
jury’s deliberations at a reasonable hour and
require[s] them to come back the next day."
United States v. Feekes, 879 F.2d 1562, 1567 (7th
Cir. 1989). Although the jury came back with a
guilty verdict forty-five minutes after receiving
the note from the trial court, there is no
evidence that it did so because it was coerced by
the trial judge into reaching a guilty verdict.
Thus, we are of the opinion that the court did
not commit plain error in submitting the note to
the jury.
The decision of the district court is
AFFIRMED.
/1 Crotteau lived with his sister, Danylle Demars,
Danylle’s brother-in-law, David Demars, David’s
wife, Crystal, and Jennifer Burt, Crotteau’s
then-girlfriend.
/2 Fed. R. Evid. 702 states as follows:
If scientific, technical, or other specialized
knowledge will assist the trier of fact to
understand the evidence or to determine a fact in
issue, a witness qualified as an expert by
knowledge, skill, experience, training, or
education, may testify thereto in the form of an
opinion or otherwise.
/3 Fed. R. Evid. 703 states:
The facts or data in the particular case upon
which an expert bases an opinion or inference may
be those perceived by or made known to the expert
at or before the hearing. If of a type reasonably
relied upon by experts in the particular field in
forming opinions or inferences upon the subject,
the facts or data need not be admissible in
evidence.
/4 Rule 29 of the Federal Rules of Criminal
Procedure provides, in relevant part:
The court on motion of a defendant or of its own
motion shall order the entry of judgment of
acquittal of one or more offenses charged in the
indictment or information after the evidence on
either side is closed if the evidence is
insufficient to sustain a conviction of such
offense or offenses. If a defendant’s motion for
judgment of acquittal at the close of the
evidence offered by the government is not
granted, the defendant may offer evidence without
having reserved the right.