United States v. Ward, Aishauna ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 03-2998 & 03-2999
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
AISHAUNA WARD and GREGORY WARD,
Defendants-Appellants.
____________
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 01 CR 927—David H. Coar, Judge.
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ARGUED MAY 18, 2004—DECIDED JULY 23, 2004
____________
Before FLAUM, Chief Judge, and KANNE and ROVNER,
Circuit Judges.
FLAUM, Chief Judge. On October 26, 2001, Gregory and
Aishauna Ward, a recently married couple, robbed the bank
where Ms. Ward was employed. They were subsequently
tried and convicted for conspiring to rob a bank, using force,
violence, or intimidation to rob a bank, and using a firearm
during the commission of a crime of violence. Gregory Ward
now appeals his conviction, and Aishauna Ward appeals her
conviction and sentence. For the reasons stated herein, we
affirm their convictions but remand both cases for
2 Nos. 03-2998 & 03-2999
resentencing.
I. BACKGROUND
At approximately 7:00 a.m. on October 26, 2001,
Aishauna Ward arrived for work at the TCF Bank located
inside the Jewel-Osco grocery store at 17705 South Halsted,
Homewood, Illinois. Ms. Ward was not originally scheduled
to work the morning shift, but she had instead volunteered
to replace a sick colleague. Her only co-worker that morning
was Shantel James.
While James was sitting inside the bank’s glass enclosed
office and preparing for the start of business, she noticed
Ms. Ward speaking to a man near the teller line. A few
minutes later Ms. Ward came into the office with the man,
who was then wearing a bandana over his face and a black
leather coat with the hood over his head. The man pointed
a gun at James and demanded that Ms. Ward fill a bag with
money.
Ms. Ward complied with the robber’s directions. The
robber allowed her to walk unescorted through an opaque
door and down a hallway to the bank’s vault. Once she
reached the vault, Ms. Ward filled the bag with $209,000
and then returned to where the robber was located. Al-
though Ms. Ward had passed the bank’s five teller stations
on the way to and from the vault, and each teller station
had a silent alarm button, she did not press any of these
alarms. Nor did she press the silent alarm button in the
vault. Even though there was a dye packet right next to the
money in the vault, which would have exploded once it left
the bank’s premises, Ms. Ward did not place it into the
robber’s bag. Upon her return to the bank’s office, the
robber demanded that Ms. Ward retrieve the bank’s
surveillance tape, which was kept in the vault. Ms. Ward
again traveled unescorted to the vault, again ignored the
six silent alarm buttons, and came back to the office with
Nos. 03-2998 & 03-2999 3
the correct videotape although there were other tapes she
could have used. The robber took the tape and then led
James out of the bank at gunpoint.
The robber forced James outside of the Jewel store and
approximately four store lengths’ down the street when he
then instructed her to walk slowly back to the bank while
he drove away. James returned to the bank and found Ms.
Ward, who still had not called the police or pressed any
alarm buttons. James requested that Ms. Ward call the
police while James pressed the teller alarms. Ms. Ward did
call 911, but appeared to be hyperventilating and gave the
dispatcher no information. James eventually took the phone
from Ms. Ward and spoke to the police.
Six days later, Ms. Ward and her husband Gregory were
arrested for the robbery of the TCF Bank branch. After her
arrest, Ms. Ward gave the police consent to search the
house she and Mr. Ward shared. In the house, police
discovered more than $23,000 in cash hidden in both
bedroom dressers, the bedroom closet, and the kitchen. The
money in the kitchen was found inside a bag marked “FRB”
for “Federal Reserve Bank”. Additionally, the police recov-
ered a hooded black leather coat and a bandana similar to
those worn by the robber. Later, police obtained Mr. Ward’s
gun which was also similar to that carried by the robber. In
the driveway was a newly purchased car Mr. Ward had
given a friend $7,200 in cash to buy for him four days after
the robbery.
Mr. and Ms. Ward subsequently were charged with
conspiring to rob a bank and using a firearm during the
commission of a crime of violence. After Mr. Ward was
released on bond, he called his sister on December 3, 2001.
Mr. Ward asked his sister if he could retrieve a bag he had
given her to hold following the robbery. Mr. Ward’s sister
informed him that the bag, which initially contained
$50,000 in cash, was being safeguarded by family friend
4 Nos. 03-2998 & 03-2999
Kimberly Gardner and her boyfriend Michael Bryant.
A few hours later, Mr. Ward and his sister drove to
Gardner’s apartment to retrieve the bag. Suspiciously, the
bag could not be located, which caused Mr. Ward to become
upset. Mr. Ward, his sister, and Gardner and Bryant all
stood around the kitchen and bathroom area of Gardner’s
apartment, and Mr. Ward’s sister then said, “I don’t believe
he’s getting ready to go to jail for 10 years for something he
doesn’t even have” and that the money was “the money they
got when they robbed the bank.” Mr. Ward did not respond,
but a few minutes later stated that “something got to give
or else I’m gon’ catch a murder before I go back to jail.” Mr.
Ward and his sister then left the apartment, and on the
way home, he said, “she’s not going to believe [that I don’t]
have the money.”
The next day, Gardner and Bryant turned Mr. Ward’s
missing bag over to the FBI. By this point there was only
$23,000 left in the bag, some of which was sequentially
numbered $20 bills. Gardner agreed to testify regarding the
previous day’s events and in turn the government agreed
not to prosecute her for spending bank robbery proceeds.
With the help of Gardner’s testimony, both Gregory and
Aishauna Ward were convicted of all of the charges against
them after a three-day jury trial. They now appeal.
II. DISCUSSION
Gregory and Aishauna Ward begin by challenging the
admission of Gardner’s testimony regarding the events of
December 3, 2001. Specifically, they contend that Gardner
should not have been allowed to testify that after Mr.
Ward’s sister said, “that’s the money they got when they
robbed the bank,” Mr. Ward remained silent. Ms. Ward
argues separately that even if this testimony was allowed
against Mr. Ward, it should not have been used against her.
Nos. 03-2998 & 03-2999 5
We begin by determining whether this evidence was
admissible against Mr. Ward. Although Mr. Ward argues
that his sister’s statement was hearsay and thus should
have been excluded, the district court found that Mr.
Ward’s silence in the face of his sister’s assertion that he
had robbed a bank was an adoptive admission. Under
Federal Rule of Evidence 801(d)(2)(B), a statement is not
hearsay if it is offered against a party and is “a statement
of which the party has manifested an adoption or belief in
its truth.” It is not necessary for one to use any specific
language to adopt another’s statement. See United States v.
Rollins, 862 F.2d 1282, 1296 (7th Cir. 1988). Rather, a
statement may be adopted as long as the statement was
made in the defendant’s presence, the defendant understood
the statement, and the defendant has the opportunity to
deny the statement but did not do so. See United States v.
Young, 814 F.2d 392, 396 (7th Cir. 1987). We review the
district court’s determination that Mr. Ward’s silence was
an adoptive admission for an abuse of discretion. See United
States v. Hernandez, 330 F.3d 964, 969 (7th Cir. 2003).
Mr. Ward argues that the district court did abuse its
discretion because there was no evidence that he heard or
understood his sister’s statement. He begins by distinguish-
ing his case from United States v. Andrus, 775 F.2d 825,
839 (7th Cir. 1985), in which the defendant was found to
have adopted another’s statement partly because both were
seated at the same table during the relevant discussion.
From Andrus, Mr. Ward concludes that the government
must prove that both the speaker and listener were in a
confined space in order to establish that they could hear
and understand each other. However, we decline to adopt
such a narrow interpretation of the adoptive admission
rule. While proof of proximity may be helpful to show that
one heard and understood another, it is not determinative.
A defendant may also demonstrate his cognizance of a
conversation by his statements and conduct during or after
6 Nos. 03-2998 & 03-2999
the conversation. See, e.g., Rollins, 862 F.2d at 1296
(finding that a defendant could hear and understand
another based upon his participation in the give and take of
the conversation).
In this case, Mr. Ward’s location as well as his verbal
responses show that he heard and understood the conversa-
tion taking place around him. While there was no testimony
to establish the exact place each person was standing
during the conversation, the witnesses did testify that Mr.
Ward, his sister, and Gardner and Bryant were all in the
kitchen and bathroom area of Gardner’s basement apart-
ment. Mr. Ward argues that the size of the kitchen and
bathroom area was never specified, but the evidence did
show that all four parties were together and having a
heated discussion about Mr. Ward’s $50,000. This, obvi-
ously, is a conversation in which Mr. Ward had a great
interest. He was angry that the money was missing, and at
various points in the conversation told Gardner that he
trusted her because he knew her, but that he did not know
Bryant. Mr. Ward’s sister was also angry and stated that
she could not believe her brother was going to jail for
something he no longer had. A few moments later, Mr.
Ward threatened Gardner and Bryant that if something did
not change, he was going to “catch a murder” before he went
to jail. This give and take between Mr. Ward and his sister,
as well as Mr. Ward and the other parties to the conversa-
tion, indicates that each could hear and understand the
other.
Thus, the district court did not abuse its discretion by
admitting evidence that Mr. Ward remained silent when his
sister said, “that’s the money they got when they robbed the
bank.” This statement was made during the conversation
discussed above, in which Mr. Ward was an active partici-
pant. Moreover, Mr. Ward’s silence qualifies as an admis-
sion because his sister’s accusation is the type of statement
that a party normally would respond to if innocent. See Fed.
Nos. 03-2998 & 03-2999 7
R. Evid. 801(d)(2)(B) Advisory Note to Subdivision d
(stating that “[w]hen silence is relied upon, the theory is
that the person would, under the circumstances, protest the
statement made in his presence, if untrue”). For these
reasons, the statement was properly admitted against Mr.
Ward.
We now turn to the issue of whether the statement “that’s
the money they got when they robbed the bank” should
have been admitted against Ms. Ward. Ms. Ward argues
that the introduction of her co-defendant’s admission
violates her rights under the Confrontation Clause. It is
true that the Constitution protects the entitlement of an
accused to confront the witnesses against her and to cross-
examine them. See Bruton v. United States, 391 U.S. 123,
134 (1968). It is also “a fundamental principle of our
jurisprudence . . . that the jury may not consider any
admissions against any party who did not join in them.” Id.
at 134-35. When one defendant’s confession expressly
implicates another defendant, it is both powerfully incrimi-
nating and at the same time inherently unreliable because
co-defendants have significant motive to lie and cannot be
compelled to testify at trial. For this reason, courts look
upon such evidence with skepticism, and the proper course
is to redact any such statement so that it no longer directly
implicates a co-defendant. See, e.g., United States v.
Souffront, 338 F.3d 809, 829 (7th Cir. 2003). When redac-
tion is coupled with a limiting instruction to the jury that
it may not consider the evidence against anyone other than
the confessing defendant, a defendant’s Confrontation
Clause rights are sufficiently protected. See United States
v. Sutton, 337 F.3d 792, 799 (7th Cir. 2003).
Ordinarily, we review the admission of a co-defendant’s
confession for harmless error. See, e.g., United States v.
Hernandez, 330 F.3d 964, 974 (7th Cir. 2003). In this case,
our review is even more limited because Ms. Ward did not
object to the use of this testimony at trial. Therefore, the
8 Nos. 03-2998 & 03-2999
district court’s ruling is subject to review for plain error.
Plain error occurs if the district court committed error in
admitting the testimony and reversal is required to prevent
“a miscarriage of justice.” United States v. Chrismon, 965
F.2d 1465, 1473 (7th Cir. 1992).
In this case it is clear that even if it was error to admit
Mr. Ward’s sister’s statement against Ms. Ward, there was
no miscarriage of justice and any error was harmless. First,
the jury was given an instruction explaining that it must
analyze what the evidence showed about each defendant
separately.1 Moreover, although the statement was not
redacted, it did not directly implicate Ms. Ward. At most,
the word “they” implies that Mr. Ward had the help of one
or more other individuals in robbing the bank. The district
court did not link “they” to “Aishauna Ward,” and in fact
explained in its jury instructions that “the defendant
Gregory Ward [was accused] of a crime, and . . . did not
deny or object to the accusation.” Nor did the government
seize upon the statement as evidence of Ms. Ward’s guilt,
and it did not refer to the statement at all in its closing
argument when discussing the evidence against Ms. Ward.
Most importantly, there was overwhelming evidence of
Ms. Ward’s guilt even without the admission of the state-
ment “they robbed the bank”. At the forefront is Ms. Ward’s
behavior during the bank robbery itself. Although she had
more than twenty opportunities to press a silent alarm
button without the robber knowing, Ms. Ward did not do so.
While Ms. Ward failed to include a dye packet within the
robber’s bag, she quite easily provided the robber with the
1
The instruction stated: “Even though the defendants are being
tried together, you must give each of them separate consideration.
In doing this, you must analyze what evidence shows about each
defendant. Each defendant is entitled to have his or her case
decided on the evidence and the law that applies to that defen-
dant.”
Nos. 03-2998 & 03-2999 9
correct surveillance videotape of the robbery. Finally, when
her co-worker was led away at gunpoint Ms. Ward did not
call the police or press a silent alarm button. It is no
surprise that the robber trusted her enough to allow her to
travel unescorted throughout the bank and collect the
money for him; all of Ms. Ward’s actions on the day of the
robbery seemed directed towards ensuring the robbery’s
success.
Ms. Ward tries to justify her behavior as that of a victim
who was panicking and trying to protect her own life. This
would perhaps be a reasonable explanation if the police had
not found $10,000 in a Federal Reserve Bank bag in Ms.
Ward’s kitchen cabinet less than a week after the robbery.
Making Ms. Ward’s account even less believable is the
$9,730 in cash hidden in her bedroom, the $50,000 her
husband gave his sister to hide days after the robbery, and
the discovery of her husband’s black trenchcoat, bandana,
and gun, all of which were similar to those the robber
possessed. Considering all of this evidence, we cannot say
that Ms. Ward “probably would have been acquitted but for”
the statement at issue. See United States v. Carroll, 871
F.2d 689, 692 (7th Cir. 1989). Ms. Ward therefore cannot
show that the district court plainly erred by admitting the
testimony.
Ms. Ward next challenges the sufficiency of the evidence
against her. This argument fails for reasons similar to those
stated above. Ms. Ward concedes that the government
proved that she had knowledge of Mr. Ward’s criminal
activities and was present at the crime scene. She argues,
however, that there was no evidence that she entered into
an agreement to rob the bank with her husband. We
disagree. Ms. Ward’s agreement to rob the bank was
evidenced by her use of her status as an employee to
facilitate the robbery and reinforced by her possession of
$20,000 of the proceeds in her bedroom and kitchen. When
the evidence is viewed in the light most favorable to the
10 Nos. 03-2998 & 03-2999
government, a rational jury could certainly have found the
essential elements of the claim beyond a reasonable doubt.
See United States v. Sanapaw, 366 F.3d 492, 495-96 (7th
Cir. 2004).
Ms. Ward’s final argument on appeal is a challenge to the
four-level sentence enhancement she received for Mr.
Ward’s abduction of James at gunpoint. Both Mr. and Mrs.
Ward received enhancements based upon U.S. Sentencing
Guidelines Manual § 2B3.1(b)(4)(a), which provides that the
defendant’s sentence should be enhanced if the district
court finds that a person was abducted to facilitate the
offense or to facilitate escape. As this Court recently
determined in United States v. Booker, 2004 WL 1535858
(7th Cir. July 9, 2004), the Supreme Court’s decision in
Blakely v. Washington, 2004 WL 1402697 (U.S. June 24,
2004), calls into doubt the constitutionality of such en-
hancements. See also United States v. Penaranda, 2004 WL
1551369 (2d Cir. July 12, 2004); United States v. Montgom-
ery, 2004 WL 1562904 (6th Cir. July 14, 2004); but see
United States v. Pineiro, 2004 WL 1543170 (5th Cir. July
12, 2004) (addressing this issue but holding that Blakely
should not be read to invalidate the U.S. Sentencing
Guidelines). Under Blakely as interpreted in Booker, a
defendant has the right to have a jury decide factual issues
that will increase the defendant’s sentence. As Booker
holds, the Guidelines’s contrary assertion that a district
judge may make such factual determinations based upon
the preponderance of the evidence runs afoul of the Sixth
Amendment. Thus, in light of the analysis set forth in
Booker, we remand these cases to the district court for
resentencing.
III. CONCLUSION
For the foregoing reasons, the judgments of conviction are
AFFIRMED. The sentences imposed are VACATED and the
cases are REMANDED for resentencing.
Nos. 03-2998 & 03-2999 11
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-23-04