United States v. Wesley, Carlos L. ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-1010
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CARLOS LEON WESLEY,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 00 CR 824—Robert W. Gettleman, Judge.
____________
ARGUED MARCH 31, 2005—DECIDED SEPTEMBER 2, 2005
____________
Before FLAUM, Chief Judge, and POSNER and EVANS,
Circuit Judges.
FLAUM, Chief Judge. Carlos Leon Wesley was convicted
of three counts of bank robbery, for which the district court
sentenced him to 57 months of imprisonment and 3 years of
supervised released. In this appeal, Wesley challenges both
his conviction and his sentence. For the reasons stated
herein, we affirm the conviction and order a limited remand
regarding Wesley’s sentence pursuant to United States v.
Paladino, 401 F.3d 471 (7th Cir. 2005).
2 No. 04-1010
I. Background
On November 27, 1999, a man approached the TCF bank
counter inside the Jewel Osco food store in Olympia Fields,
Illinois. He showed bank teller Jeanette Butler a handwrit-
ten note that read, “This is a fucking stick-up.” Butler
responded, “You’ve got to be kidding me.” To which the man
replied, “I’m not.” Butler handed him approximately $950
along with a dye pack. After the man left the store, Butler
pushed the security alarm and informed her manager.
Butler was again working as a teller on May 17, 2000,
when she recognized the man from the November robbery
in line at the same TCF bank counter. Behind the counter,
Butler kicked the other teller on duty, Janice DeBose, to try
to warn her. Apparently not understanding why she had
been kicked, DeBose told Butler to wait until she had
finished with her customer. When the man reached the
front of DeBose’s line, he showed her a checkbook with a
blue or black cover that had a handwritten note inside. The
note said, “This is a fucking stick-up.” DeBose gave the man
the money in her top drawer along with a dye pack. After
the man left, DeBose informed her supervisor and the police
were called.
On September 27, 2000, a man approached bank teller
Theresa Hicks at the same TCF bank counter and took from
a checkbook a note with the following message: “This is a
stick-up. Give me your hundreds, fifties, and twenties. And
do not give me the dye pack.” Hicks handed the man the
money in her top drawer and also gave him a dye pack.
After the September 2000 robbery, the Olympia Fields
Jewel Osco received an anonymous telephone call, the
content of which the store manager passed on to FBI Agent
Dan Lee. The caller reported seeing a man who appeared to
detonate a “cherry bomb” or to use red spray paint in the
Jewel Osco parking lot and then get into a white van and
drive away. The caller also provided the license plate
No. 04-1010 3
number of the white van. Agent Lee traced the number and
found that it matched a 1993 Mitsubishi registered to
Carlos Wesley of 11555 South Ashland Avenue in Chicago,
Illinois.
Soon thereafter, Agent Lee found a white van parked in
front of 11555 South Ashland with the license plate number
provided by the anonymous caller and with a reddish stain
on its left front quarter-panel. Aware that the dye pack
involved in the robbery contained red dye, Agent Lee called
for back-up. Several hours later, Wesley and another man
approached the van. When FBI agents presented them-
selves, the defendant identified himself as Carlos Wesley
and the other man said that he was Wesley’s brother.
Wesley consented to searches of the van and his bedroom
inside the house at 11555 South Ashland. Agents found a
blue checkbook cover with a red stain in Wesley’s bedroom
and Wesley admitted that it belonged to him. Subsequent
laboratory analysis of swabs from the red stains on the van
and the checkbook cover indicated the presence of a sub-
stance of the same chemical composition as that contained
in the dye packs used by the TCF bank.
Agent Lee created a photo array comprised of six photo-
graphs, including one of Wesley. He presented unmarked
copies of the photo array to Butler and Hicks. Both bank
tellers independently identified Wesley as the man who had
robbed the TCF bank.
Following indictment and one mistrial, Wesley was tried
on three counts of bank robbery in June 2003. All three
bank tellers testified, recounting specific details about each
of the bank robberies. Butler and Hicks each explained how
they had picked Wesley’s photograph from the photo array
and DeBose identified Wesley in the courtroom. The
government also introduced store surveillance videotapes
showing the perpetrator of each robbery. The jury returned
a verdict of guilty on each of the three counts.
4 No. 04-1010
Wesley moved for a judgment of acquittal and for a new
trial. The district court denied both motions and sentenced
Wesley to 57 months of imprisonment and 3 years of
supervised released, and ordered him to pay restitution.
Wesley appeals from the final judgment and sentence,
arguing that the district court abused its discretion in
denying his motion for a new trial and erred in treating the
sentencing guidelines as mandatory contrary to United
States v. Booker, 125 S. Ct. 738 (2005).
II. Discussion
We review a district court’s decision not to grant a new
trial for abuse of discretion. United States v. Mietus, 237
F.3d 866, 870 (7th Cir. 2001). “If the court’s decision rests
on an error of law, however, then it is clear that an abuse
of discretion has occurred, as it is always an abuse of
discretion to base a decision on an incorrect view of the
law.” Id. (citing Cooter & Gell v. Hartmarx Corp., 496 U.S.
384, 405 (1990)). “[O]ur review of this type of underlying
legal ruling is non-deferential.” Id. Wesley cites several
alleged trial errors in arguing for reversal of his conviction.
We discuss each in turn before considering the challenge to
his sentence.
A. Hearsay Testimony
During the first trial, which resulted in a mistrial, Wesley
moved to exclude the content of the anonymous call describ-
ing a “white van” at the scene of one of the robberies and its
driver who appeared to detonate a “cherry bomb.” He
argued both that it was inadmissible hearsay and that it
should be excluded under Federal Rule of Evidence 403,
emphasizing that this was the only direct evidence placing
the van in the Jewel Osco parking lot. The government
responded that the call fit within the excited utterance and
No. 04-1010 5
present sense impression hearsay exceptions. The district
court ruled that the fact of the call could come in to explain
the actions of law enforcement: “They didn’t pull this
number out of the thin air. And they’re entitled to explain
why they went to look at this vehicle and had the license
number.” The court held, however, that the content of the
call could not be presented for the truth of the matter
asserted therein. It explained:
You could put into context the actions of both the
manager of the store and the police officers without
disclosing the actual substance of a conversation. So
that’s what they should say. “We got a call or the
manager told us she had received an anonymous call,
and based on that, we did X, Y, and Z.”
The government elicited testimony in accordance with the
court’s ruling. There was no testimony that the anonymous
caller described a white van or mentioned red paint or a
“cherry bomb.”
Before the start of the second trial, the government
moved in limine for the admission of the content of the
anonymous call, again arguing that the excited utterance
and present sense impression hearsay exceptions applied.
The court denied the motion. At trial, the government
elicited the following testimony from Agent Lee:
Q. Did you receive—what information did you receive
from [the store] manager?
A. She gave me a slip of paper which had a tag num-
ber written on it.
Q. Did she tell you how she got that information?
A. She’d received it through an anonymous phone call.
Q. When you say “tag number,” what is that?
A. The plate on your car, the license plate.
Q. Other than receiving a license plate number, was
6 No. 04-1010
there a description of the vehicle?
A. They described it as being a white van.
At this point, defense counsel objected and requested a side
bar. The court and counsel reviewed the transcript from the
previous trial and found that the government had asked
only about the steps law enforcement had taken after
receiving the anonymous call, but had not elicited any
information about the content of the call. The government
agreed to question Agent Lee in this way once again. In the
presence of the jury, the government proceeded:
Q. Agent, let me go back and ask you two questions.
The anonymous, the call, the information you got
back from the Jewel manager that she received
from the anonymous call gave you a license plate
number, correct?
A. That’s correct.
Q. Then you also at some point began to look for a
white van, correct?
A. Correct.
Defense counsel again objected and asked that the testi-
mony be stricken because it revealed that the anonymous
caller had referred to a “white van.” The judge sustained
the objection, directed the government to question Agent
Lee exactly as it had in the first trial, and gave the follow-
ing instruction to the jury:
We’re going to strike the testimony and the questions
that were asked immediately after the first sidebar we
took this afternoon. So I want you to disregard all those
questions. We’re going to start this line of questioning
over again. So I’m instructing you to disregard those
questions and answers and just pay attention to what
[the government] is about to do now.
The government questioned Agent Lee as follows:
No. 04-1010 7
Q. Agent, when you were at the scene of the Septem-
ber 27, 2000 investigation, the bank robbery, did
you speak with a manager from the Jewel store?
A. Yes, I did.
Q. Did you receive some information that she received
from an anonymous call?
A. Yes, I did.
Q. Based on the information you received, what did
you do?
A. I took that information and ran it in what we call
the National Crime Information Center computer.
Q. And the information you got was a license plate
number, correct?
A. That’s correct.
Q. What was the license plate number?
A. YNL 553, Illinois plate.
Q. When you ran it through the computer, law enforce-
ment databases, what information did you receive
regarding that license plate number?
A. That it was registered to a 1993 Mitsubishi. The
owner was Carlos Wesley at 11555 South Ashland
in Chicago, Illinois.
Defense counsel made no further objections to this line of
questioning.
Wesley argues that he was prejudiced because the court
did not strike the testimony before the first side bar and
because reference to the “white van” was, in his words, a
“bell twice rung that could not be ‘unrung.’ ” The testimony,
he asserts, placed Wesley’s white van near the scene of the
crime and made it impossible for defense counsel to argue,
as he had in the first trial, that the government failed to
8 No. 04-1010
make this connection. There was no other direct evidence
placing the van in the Jewel parking lot because the license
plate was registered to a different vehicle, a 1993
Mitsubishi.
The government argues that, although the court may
have misspoken when it struck only “the testimony and
questions that were asked immediately after the first
sidebar,” instead of the testimony and question immediately
before and after the first sidebar, it clearly communicated
to the jury that it was to disregard the entire line of
questioning and to “just pay attention to what [the govern-
ment] is about to do now.” We need not determine, however,
whether the judge erred in admitting evidence or by giving
an incomplete curative instruction because any such errors
were harmless. See Fed. R. Crim. P. 52(a); United States v.
Lamarre, 248 F.3d 642, 649 (7th Cir. 2001) (“We will not
reverse unless the [evidentiary] error affected substantial
rights . . . or had a substantial or injurious effect or influ-
ence on the jury’s verdict.”) (internal quotations and
citations omitted).
Defense counsel did not object at trial, and presents no
challenge now, to Agent Lee’s testimony that the anony-
mous caller provided a license plate number that was
registered to Wesley at his home address. When Agent Lee
went to this address, he found this license plate on a vehicle
that had a reddish stain on the left front quarter-panel.
Testing revealed that the stain contained a substance of the
same chemical composition as that used in the TCF Bank’s
dye packs. This is strong circumstantial evidence that the
vehicle found by Agent Lee, the white van, was present at
the scene of at least one of the robberies. The caller’s
statement that the license plate was on a white van made
very little difference in the context of the rest of the evi-
dence presented at trial, including strong eyewitness
testimony that placed Wesley himself at the scene of all
three bank robberies. Therefore, assuming without deciding
No. 04-1010 9
that the evidence was inadmissible and that the curative
instruction did not effectively inform the jurors that they
should disregard the testimony immediately before and
after the first side bar, we hold that the errors were harm-
less.
B. Government’s Closing Argument
Wesley argues that he is entitled to a new trial because of
improper statements made by the prosecutor in closing
argument. In reviewing a prosecutor’s remarks, we first
must look at them in isolation to determine whether they
stayed within proper bounds. Mietus, 237 F.3d at 870. If the
remarks violated one of the defendant’s specific trial rights,
such as the Fifth Amendment right against self-incrimina-
tion, then “the court may hold the error harmless and
uphold the conviction only if the government proves beyond
a reasonable doubt that the defendant would have been
convicted absent the unconstitutional prosecutorial com-
ments.” Id. If the remarks are instances of general prosecu-
torial misconduct, but do not implicate a specific constitu-
tional right, then we consider the remarks in light of the
entire record to determine if the defendant was deprived of
a fair trial; that is, we ask “whether the prosecutors’
comments so infected the trial with unfairness as to make
the resulting conviction a denial of due process.” Darden v.
Wainwright, 477 U.S. 168, 181 (1986) (internal quotations
omitted).
Wesley presents what he contends is one example of each
type of prosecutorial overstepping. First, he argues that the
prosecutor violated the Fifth Amendment by indirectly
commenting on his decision not to testify. Second, he
asserts that the government’s suggestion that defense
counsel made racist comments was an instance of general
prosecutorial misconduct and so infected the trial with
unfairness as to constitute a denial of due process.
10 No. 04-1010
1. Fifth Amendment Right Against Self-Incrimina-
tion
During closing arguments, defense counsel referred to
Wesley’s brother as a crack addict who previously had
robbed Wesley. He also said that Wesley’s brother had
access to Wesley’s van and bedroom. He then added: “[Y]ou
all know what drug addicts are capable of. You know how
much they need money. I mean, who knows? Are we saying
that his brother did it? No. But is there reasonable doubt
based on his brother? Of course there is.” He also noted that
the fingerprints taken from the bank did not match Wes-
ley’s, and that law enforcement had not checked the prints
against the brother’s. At the end of his closing argument,
defense counsel suggested that Wesley’s brother or one of
his brother’s “drug associates” may have borrowed Wesley’s
van and committed the three bank robberies.
The following occurred during the prosecutor’s rebuttal
argument:
[Gov.]: Let me just briefly address the argument
that defense counsel has now thrown out
there about his brother, and that, too, is
meant to be an enormous distraction for
you, meant to distract you from the very
strong evidence in this case.
Well, you know what, if the brother is
supposed to be the one responsible, the
brother looks like him, where is the
brother? Where is he?
[Def.]: Judge, I’m going to object. We don’t have
the burden of proof, and that’s an unfair
comment.
[Gov.]: Your Honor, they have subpoena power.
The Court: Overruled.
No. 04-1010 11
[Gov.]: They have subpoena power just like the
government does. They can issue subpoenas
to this trial and bring witnesses in here
through the power of the Court.
[Def.]: Judge, and I’m also going to object because
we didn’t put that evidence in, and this
argument—
The Court: But you did argue it . . . and this is argu-
ment. Overruled.
[Gov.]: They could have brought, they could have
subpoenaed the brother and brought him
here and put him up there on the witness
stand and asked him questions. And you
could have seen what he looks like. You
don’t have—you haven’t seen or heard any
evidence at all about what he looks like
other than he was a black man. Is he the
same? Does he at all look like the defen-
dant? You have no evidence of that at all.
You don’t know anything about him.
After closing arguments, and outside of the presence of
the jury, defense counsel renewed his objection. The district
court said that the government’s comments were “fair” and
explained: “[W]e all have seen [the video], we all have seen
Mr. Wesley, you know, there are resemblances there, so
you’re inviting them to believe that Mr. Wesley’s brother
resembles both him and the fellow on the videotape, and I
think it’s fair to comment.” Defense counsel then moved for
a mistrial and the district court denied the motion.
Wesley argues that the prosecutor’s comments about his
failure to call his brother or to present evidence of his
brother’s appearance shifted the burden of proof to the
defense. We have explained that this kind of comment does
not really change the burden; the district court correctly
instructed the jury that the prosecutor bears the burden at
12 No. 04-1010
all times. See United States v. Sblendorio, 830 F.2d 1382,
1391 (7th Cir. 1987). Rather, Wesley’s real complaint, which
he identifies later in his brief, is that the prosecutor’s
argument adversely affected the exercise of his right
against self-incrimination and should be held unconstitu-
tional under Griffin v. California, 380 U.S. 609 (1965),
which forbids the government from inviting the jury to draw
an adverse inference from a defendant’s decision not to
testify.
The rule of Griffin prohibits indirect as well as direct
invitations to draw an adverse inference from a defendant’s
decision not to testify. See Mietus, 237 F.3d at 871. For
example, a prosecutor’s comment about the defense’s failure
to present evidence will violate this rule if the only person
who could have provided the evidence was the defendant
through his own testimony. Id. We have held, however, that
there will be no violation of the right if the defense opens
the door by commenting on the government’s failure to call
a witness or to present evidence on a given issue, the
prosecutor responds by commenting that the defense could
have subpoenaed the witness or presented other evidence
on the issue, and that witness or evidence was available to
the defendant. See Sblendorio, 830 F.2d at 1392-94.
Despite Wesley’s assertion to the contrary, it is clear that
defense counsel opened the door to the prosecutor’s com-
ments. As the district court understood, defense counsel
was trying to get the jury to believe that Wesley’s brother
had features similar to Wesley’s and could have been the
person in the bank surveillance videos. He described the
brother’s motive and opportunity to commit the crimes and
said that the government should have compared his
fingerprints to those found at the bank, suggesting that it
was within the government’s power to present evidence
excluding the brother. When the government responded by
pointing out that the defense has “subpoena power just like
the government does” and could have presented evidence
No. 04-1010 13
about the brother, it merely provided information that the
jury is entitled to know. Sblendorio, 830 F.2d at 1393-94.
In addition, Wesley has presented nothing to indicate that
his brother was not available. We do not agree with Wesley
that the possibility that his brother might have invoked his
Fifth Amendment privilege against self-incrimination made
the prosecutor’s comments improper. First, there is nothing
in the record indicating that Wesley’s brother would have
invoked the privilege. Second, while Wesley’s brother could
not have been compelled to provide self-incriminating
testimony, he could have been compelled to provide evi-
dence of his physical characteristics. See United States v.
Jackson, 476 F.2d 249, 253 (7th Cir. 1973) (“From a consti-
tutional standpoint, it is well-established that a person may
lawfully be compelled to exhibit or demonstrate physical
characteristics.”). At the very least, Wesley could have
presented photographs or a video of his brother so that the
jury could compare him to Wesley and to the man on the
bank surveillance videos. See Pennsylvania v. Muniz, 496
U.S. 582, 591-92 (1990) (admission of videotape of defen-
dant did not infringe right against self-incrimination).
Alternatively, Wesley could have called a witness to testify
to the appearance of both brothers or could have asked the
court to compel his brother to participate in a lineup prior
to trial. See United States v. Wade, 388 U.S. 218, 222 (1967)
(“We have no doubt that compelling the accused merely to
exhibit his person for observation by a prosecution witness
prior to trial involves no compulsion of the accused to give
evidence having testimonial significance.”). Wesley may
even have been able to call his brother to allow the jury to
make an in-court comparison of the two. See United States
v. Lumitap, 111 F.3d 81, 84 (9th Cir. 1997) (holding that
government can compel defendant’s presence at trial for
identification purposes and collecting cases from other
jurisdictions to the same effect); see also Jackson, 476 F.2d
at 253 (reviewing Supreme Court cases and noting that
14 No. 04-1010
they “would seem to support a requirement that defendant
appear in court for identification . . . .”); Schmerber v.
California, 384 U.S. 757, 764 (1966) (noting that “both
federal and state courts have usually held that [the Fifth
Amendment] offers no protection against compulsion . . . to
appear in court.”). The prosecutor simply made clear that,
just as the government could have presented evidence
excluding the brother, Wesley could have presented evi-
dence other than his own testimony linking his brother to
the robberies. As in Sblendorio, the defense opened the door
by suggesting that Wesley’s brother could have been the
man on the bank surveillance videos and commenting on
the government’s failure to call a witness or to present
evidence excluding the brother, the prosecutor responded by
commenting that the defense could have subpoenaed the
brother or presented other evidence of the brother’s appear-
ance, and the brother or other evidence of his appearance
was available to Wesley. 830 F.2d at 1392-94. Accordingly,
there was no violation of Wesley’s Fifth Amendment right
against self-incrimination.
2. Suggestion that Defense Counsel Made Racist
Comments
At trial, bank teller Janice DeBose made an in-court
identification of Wesley. On cross-examination, defense
counsel elicited that DeBose knew that Wesley would be
present in court and asked, “and that’s the only black man
sitting at this table, isn’t it?” DeBose answered affirma-
tively. On re-direct, DeBose testified that she identified
Wesley based on her memory of his physical appearance,
not because he was the only black man at the defense table.
During closing arguments, the government pointed out that
the evidence against Wesley included the eyewitness
No. 04-1010 15
testimony of three bank tellers. The prosecutor then said:
“[D]o they seem like people to you who would just flippantly
pick anybody out of a photo array, just take the witness
stand and point at the defendant because he’s the only
black man at the table? And that, folks, to insinuate that is
insulting.”
In his closing remarks, defense counsel questioned the
validity of the eyewitness identifications, stating, “I’m sorry
that [the prosecutor] is insulted that Ms. DeBose picked out
Carlos Wesley, but forget about being insulted or not, the
question you need to ask yourself is: Is that the kind of ID,
in-court ID that you want to rely on for proof beyond a
reasonable doubt?” He told the jury that DeBose made her
in-court identification of Wesley within seconds of being
asked who had robbed her and emphasized that it had been
three years since the robbery and that Wesley was sitting
some distance from her in the courtroom. The following
occurred in the prosecutor’s rebuttal argument:
[Gov.]: And to suggest that any [of the wit-
nesses], that Ms. DeBose especially would
get up on that witness stand under oath
and say something other than the truth,
it insults her, and it insults the oath that
you, too, took as jurors. To suggest that
she picked the defendant out because he
is the only black man sitting at counsel
table, it is insulting, and you should be
insulted by that argument.
[Def.]: Judge, I’m going to object to that. . . .
The Court: Excuse me?
[Def.]: I object to her saying the jury should be
insulted by it.
The Court: Well, let’s not get personal.
[Gov.]: Ms. DeBose, who you saw as a black
16 No. 04-1010
woman herself, to suggest that she would
just pick out the defendant because he
was the only black man sitting at counsel
table, it’s just, it’s just wrong, and it is
insulting, and you should disregard that.
You should disregard that argument.
Wesley argues that the prosecutor’s statements were
made in an attempt to inflame the jury by suggesting that
defense counsel was using racist arguments that should
insult the jury. This, Wesley asserts, was an attack on the
integrity of defense counsel and deprived him of a fair trial.
“As a general matter, improper comments during closing
arguments rarely rise to the level of reversible error, and
considerable discretion is entrusted to the district court to
supervise the arguments of counsel.” United States v.
Amerson, 185 F.3d 676, 685-86 (7th Cir. 1999) (internal
quotations omitted). “A new trial is required only if the
improper comments prejudiced the defendant’s right to a
fair trial.” Id.; see also Darden, 477 U.S. at 181 (“[I]t is not
enough that the prosecutors’ remarks were undesirable or
even universally condemned. . . . The relevant question is
whether the prosecutors’ comments so infected the trial
with unfairness as to make the resulting conviction a denial
of due process.”) (internal citations and quotations omitted).
Wesley relies on Sblendorio, where the prosecutor’s
rebuttal argument was filled with “caustic” statements,
including, “I can’t believe some of these defense attorneys
stood up in front of you with straight faces.” 830 F.2d at
1395. We explained that, although the prosecutor can call
defense arguments “lame,” “he was not entitled to add to
that by suggesting that the defense lawyers would start
sniggering as soon as they were out of the jurors’ view.” Id.We nevertheless found that the statement did not deprive
the defendant of a fair trial because its effects could be only
minimal given its context in the course of a multi-day trial.
No. 04-1010 17
In this case, defense counsel suggested that DeBose’s in-
court identification of Wesley may have been affected by the
fact that he was the only black man at the defense table. In
her closing argument, the prosecutor not only argued that
the identification was accurate and should be believed by
the jury, but also used inflammatory language to make
jurors think that defense counsel was insulting them by
emphasizing race. This, the prosecutor should not have
done. No proper purpose is served by trying to make the
jurors feel that they have been insulted by the defense.
Nevertheless, the underlying point—that jurors may judge
for themselves the credibility of the prosecution witnesses
and whether it seems likely that these witnesses would
make a false identification, intentionally or otherwise—is
appropriate. Furthermore, we cannot say that the prosecu-
tor’s comment was more inappropriate than the comment in
Sblendorio. There, the prosecutor suggested that the
defense attorneys were willing to mislead the jury with
impossible arguments, and accompanied this accusation
with other “caustic” statements. Here, the prosecutor
suggested that defense counsel was being distasteful, but
did not impugn his honesty. In addition, unlike in
Sblendorio, the prosecutor’s comment in this case was not
accompanied by other “caustic” statements. While the
prosecutor should have chosen a less inflammatory way of
responding to defense counsel’s challenge to DeBose’s in-
court identification, the solitary statement did not so infect
the trial with unfairness as to make the resulting conviction
a denial of due process.
C. Juror Bias
During the second day of jury deliberations, one of the
jurors, Juror Roberts, sent out the following note: “[Juror
Soler] told us that he had been robbed by an employee last
night. Checks were stolen, and his account was depleted. He
18 No. 04-1010
spent last night doing police reports. My question: Can he
be fair?” The judge talked to Juror Roberts in chambers in
the presence of one attorney from each side (Wesley waived
his right to be present). After asking Juror Roberts how she
had learned about what had happened to Juror Soler, the
judge asked her whether this event would affect her ability
to be fair. She replied that it would not. The judge then sent
Juror Roberts back to the jury room and brought Juror
Soler into his chambers. Before doing so, however, the judge
explained to counsel for both sides that he planned to ask
Juror Soler, and later all of the other jurors, if they still
could be fair and impartial. Defense counsel said, “That
sounds about right.”
After hearing Juror Soler’s description of the theft by his
employee, the judge asked, “do you think that this experi-
ence would have any effect on your ability to be fair to both
sides?” He responded that it would not. The prosecution and
defense both declined the judge’s invitation to ask Juror
Soler questions and he was returned to the jury room.
With all parties present in chambers, the judge asked if
anyone had any thoughts about the situation. The prosecu-
tor stated that he did not hear anything that would give
him pause. Defense counsel expressed some concern about
the similarity between the crime committed against Juror
Soler and the bank robberies for which Wesley was being
tried. The judge then stated that he believed that Juror
Soler could keep the event separate from the task at hand,
and said, “I wanted to know whether you had any motion or
request regarding [Juror Soler] and what he told us.”
Finally, the judge said that he would talk to the entire jury
and “tell them that we have spoken to [Juror Soler], and
that I’m convinced that [Juror Soler] can be fair and
impartial despite the unfortunate experience he had last
night.” The court asked if there were any objections and
defense counsel said, “I think that’s fine.”
No. 04-1010 19
In open court and in the presence of the jury, the judge
said:
As you know, there are a couple of matters that we
have to discuss, and one of them involves [Juror Soler]
and his experience last night. And I just want you all to
be assured that we have spoken to [Juror Soler] about
that, and he has assured us, and I am quite confident
and comfortable with his assurance, that his experience
of last night will not affect his ability to be fair and
impartial. And so we are not going to take any action as
a result of that. I want to make sure you all know that,
and if there is anybody among you who has any prob-
lems with that, I’d like you to let me know right now.
No juror expressed any concerns, and neither defense
counsel nor the prosecutor objected or made any motion to
the court.
Wesley now argues that juror bias must be presumed
from the events that transpired during deliberations. He
acknowledges that he did not object during trial and asserts
that his forfeited argument should be reviewed for plain
error. The government contends that Wesley waived his
right to raise this issue on appeal.
“Waiver and forfeiture are related doctrines; waiver
occurs when a defendant intentionally relinquishes or
abandons a known right, whereas forfeiture occurs when a
defendant fails to timely assert his rights.” United States v.
Pappas, 409 F.3d 828, 829 (7th Cir. 2005) (internal quota-
tions and citations omitted). “A forfeiture is basically an
oversight; a waiver is a deliberate decision not to present a
ground for relief that might be available in the law.” United
States v. Cook, 406 F.3d 485, 487 (7th Cir. 2005). “While we
review forfeited issues for plain error, we cannot review
waived issues at all because a valid waiver leaves no error
for us to correct on appeal.” Pappas, 409 F.3d at 830(internal quotations omitted).
20 No. 04-1010
Here, the judge and the parties gathered in chambers to
discuss what should be done regarding Juror Soler’s
experience. The judge sought the guidance of both parties,
asked if there were any motions, and proposed a plan for
proceeding. Defense counsel did not accept the court’s
invitation to make a motion and instead responded that the
proposed plan was “fine.” Thereafter, the district court did
exactly what it had said it would do and defense counsel did
not object. Wesley does not claim that the situation was
confusing or that defense counsel did not understand what
he was agreeing to. It was clear from his comments in
chambers that defense counsel understood that the question
of juror bias was at issue. The court expressly asked defense
counsel if he approved of its plan and gave him the opportu-
nity to make a motion or to suggest an alternative plan.
Clearly aware of what was at stake, defense counsel
declined to do so and agreed to the approach proposed by
the court. We find that, through his counsel, Wesley
intentionally relinquished his right to challenge the
makeup of the jury based on Juror Soler’s experience during
deliberations. Accordingly, there can be no error for us to
correct on appeal.
D. Sentencing
Finally, Wesley contends that the Supreme Court’s
decision in United States v. Booker, 125 S. Ct. 738 (2005),
necessitates resentencing. Because Wesley did not raise this
or a related challenge to his sentence before the district
court, we review for plain error. United States v. Paladino,
401 F.3d 471, 481 (7th Cir. 2005). Under the plain error
test, “before an appellate court can correct an error not
raised at trial, there must be (1) error, (2) that is plain, and
(3) that affects substantial rights.” United States v. Cotton,
535 U.S. 625, 631 (2002) (internal quotations and citation
omitted). “If all three conditions are met, an appellate court
No. 04-1010 21
may then exercise its discretion to notice a forfeited error,
but only if (4) the error seriously affects the fairness,
integrity, or public reputation of judicial proceedings.” Id.Wesley’s challenge rests on the district court’s treatment
of the Guidelines as mandatory. As we have made clear,
“the mandatory, as opposed to advisory, application of the
Guidelines constitutes error that is plain.” United States v.
Schmeilski, 408 F.3d 917, 921 (7th Cir. 2005). In addition,
“[i]f a defendant has been prejudiced by an illegal sentence,
then allowing that illegal sentence to stand would consti-
tute a miscarriage of justice.” Id.; see also Paladino, 401
F.3d at 483. Thus, we need only determine whether the
sentencing court, operating under the discretion permitted
by Booker, would have sentenced Wesley differently. On
this record, we cannot be certain that the same sentence
would have been imposed. Accordingly, while retaining
jurisdiction, we order a limited remand to permit the
sentencing court to determine whether it would have given
Wesley a lower sentence had it understood the Guidelines
to be merely advisory. The sentencing court should proceed
on remand in accordance with the procedure set forth in
Paladino.
III. Conclusion
We AFFIRM Wesley’s conviction and order a LIMITED
REMAND in accordance with Paladino to obtain a determina-
tion as to whether the district court would have entered a
lower sentence had it known that the Guidelines are
advisory.
22 No. 04-1010
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—9-2-05