United States v. Harvey Robinson , 724 F.3d 878 ( 2013 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-3874
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
H ARVEY R OBINSON,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 11 CR 552—Charles R. Norgle, Judge.
A RGUED A PRIL 22, 2013—D ECIDED JULY 31, 2013
Before W OOD , T INDER, and H AMILTON, Circuit Judges.
W OOD , Circuit Judge. Harvey Robinson was asleep on
his grandmother’s living room sofa when Chicago
police officers conducted an early-morning search of
her apartment. They were looking for evidence that
Robinson was selling marijuana from the premises. After
a thorough search, police officers found less than two
grams of marijuana, but they also recovered a loaded
revolver lying in a laundry basket by the front door.
2 No. 12-3874
According to police officers, Robinson twice admit-
ted—at the time of the gun’s discovery and during a
later stationhouse interrogation—that the revolver was
his; Robinson denies making such statements. After
lengthy deliberations a jury convicted Robinson of pos-
session of a firearm by a felon, in violation of 18 U.S.C.
§ 922(g)(1).
On appeal Robinson raises numerous issues, only
three of which require resolution here. He argues first
that the revolver should have been suppressed because
the warrant authorizing the search was not supported
by probable cause. Next, he urges that the district
court should have conducted a Franks hearing to assess
whether police officers knowingly or recklessly sub-
mitted false information in support of the warrant ap-
plication. Finally, he contends that the court committed
reversible error by refusing to give a requested
limiting instruction about his prior felony conviction.
Robinson’s first two arguments are unavailing, but
because the district court erred by failing to give a
proper limiting instruction and that error was not harm-
less, his conviction must be vacated.
I
Robinson came to the attention of Chicago police
officers through a tip provided by an anonymous infor-
mant, referred to in court filings only as “John / Jane Doe.”
(We will use the masculine pronoun for convenience.)
According to the search warrant complaint, Doe and an
individual named “Tookie” had known one another for
No. 12-3874 3
approximately eight months. In September 2010, Doe
said that he bought marijuana from Tookie approxi-
mately one dozen times, with each sale occurring
inside Tookie’s first-floor apartment at 1453 S. Springfield.
During the final transaction, which occurred on
September 30, 2010, Doe noticed that Tookie had several
more large bags of marijuana on a bookshelf in the hall-
way. In order to confirm that the leafy green
substance Tookie provided was, in fact, marijuana (and
perhaps for his own recreation), Doe smoked some of
the goods purchased that day before talking to
police officers.
Later that afternoon, City of Chicago police officer
Griselda Elizondo took Doe past 1453 S. Springfield in a
police vehicle. Doe confirmed that this was the apart-
ment building where Doe purchased marijuana from
Tookie. Elizondo then showed Doe photographs from
a Chicago police database, and Doe identified a picture
of the defendant, known by Chicago police to use
the nickname “Tookie,” as his marijuana-selling acquain-
tance. As explained in greater depth below, however,
the precise method by which this identification took
place is unclear from the record, and such details are
critical in assessing the probative value of Doe’s iden-
tification of Robinson.
Doe and Elizondo then appeared before a judge of
the Circuit Court of Cook County, making themselves
available for questioning and reciting the facts sum-
marized above in a sworn complaint. No transcript of this
proceeding appears in the record, and there is no indica-
4 No. 12-3874
tion that the court asked Doe any questions. Rather, the
judge found that the complaint “state[d] sufficient facts
to show probable cause” and issued a search warrant
for Harvey Robinson, a.k.a. “Tookie,” and the first-floor
apartment at 1453 S. Springfield.
Shortly before 6:00 the next morning, nine or ten
Chicago police officers conducted the planned search.
Present at the time were Robinson, his grandmother
(who opened the door for the police), his uncle and
aunt, and his aunt’s boyfriend. Sergeant Ronald Blas, the
“search team supervisor,” testified that he was the last
police officer to enter the premises. Apparently, he was
the first to notice a large silver revolver (a .44-caliber
Ruger Super Redhawk) lying on top of a laundry basket
immediately next to the front door (see photograph, post
at 19). After noticing the gun, Blas walked over to Robin-
son, who had been asleep on a sofa in the dining room,
read Robinson his Miranda rights, and asked Robinson “if
there was anything in the residence that shouldn’t be
[t]here.” According to Blas, Robinson answered either,
“Yes, that’s my gun,” or “The gun that’s in the laundry
basket.”
Robinson filed a pre-trial motion seeking to suppress
the gun. The court indicated that there likely was
probable cause supporting the search warrant, though
it stopped short of making such a determination.
Instead, it held that suppression was improper because
the officers were entitled to rely on the warrant in
good faith.
No. 12-3874 5
After the early morning search, Robinson was taken to
a nearby police station, where he was interrogated
by Elizondo and another Chicago police officer, Nina
Moore. At trial, Moore and Elizondo both testified
that Elizondo advised Robinson of his Miranda rights
a second time, after which Robinson reconfirmed
that the gun belonged to him. The officers recalled that
Robinson stated that he purchased the gun several
months earlier after overhearing two people discussing
the weapon at a gas station near the intersection of
West 111th and South State Streets. Robinson (they con-
tinued) admitted that he bought the gun for $200 from
the owner inside a nearby Wendy’s restaurant soon after.
Robinson’s wife and grandmother testified for the
defense. Both stated that they had never seen Robinson
with a gun, and that they did not believe that the
recovered revolver was his. Robinson’s grandmother
also testified that her daughter’s boyfriend, who was
staying in the apartment at the time of the search, had
a criminal history. On cross-examination, the govern-
ment elicited some minor concessions from the
witnesses: Robinson’s wife acknowledged that Robinson
used to hang out on Chicago’s South Side, in the
general vicinity of W. 111th St. and S. State St., and Robin-
son’s grandmother confirmed that she heard one of
the officers announce during the search that he had
discovered a gun. Robinson did not testify.
Before closing arguments, the parties agreed on the
following jury instruction, which was modeled
on Seventh Circuit Pattern Instruction 3.04, addressing
6 No. 12-3874
Robinson’s stipulation that he had a prior felony convic-
tion:
You have heard evidence that prior to October 1, 2010,
defendant Harvey Robinson was convicted of a
felony offense. You may consider this conviction on
the question of whether the government has
proved that, prior to October 1, 2010, the defendant
had been convicted of a crime that was punishable
by a term of imprisonment of more than one year.
You should consider this evidence only for this
limited purpose.
When the court instructed the jury orally, however, it
left off the final sentence (“You should consider this
evidence only for this purpose.”). Both Robinson and the
government immediately flagged the omission, and
Robinson urged the court to recall the jury to give
the complete limiting instruction orally. The court origi-
nally explained that it failed to read the final sentence
because it thought the limiting instruction was proper
only if Robinson had taken the stand in his own de-
fense. Apparently reconsidering this position, the
court then expressed concern that recalling the jury
would draw undue attention to a single instruction.
Ultimately the court refused Robinson’s request, but
it emphasized that the jury would receive a complete
set of the written instructions as they deliberated.
The jury met for almost five hours before asking to
adjourn for the day. The court granted this request and
instructed the jury to “reread all instructions” before
they resumed their work. On the next day of delibera-
No. 12-3874 7
tions, the jury met for another five hours, at which point
they signaled that they were having trouble reaching
consensus. Again, the court told the jurors to “reread
all instructions and continue to deliberate.” About an
hour later, the jury returned a verdict of guilty. Robinson
was sentenced to ten years in prison.
II
We turn first to Robinson’s argument that the gun
should have been suppressed because it was seized
pursuant to a search warrant that was not supported by
probable cause. We give no special weight to the
district court’s decision in assessing whether the facts
add up to probable cause, but we do afford “great defer-
ence” to the conclusion of the judge who issued the
warrant. United States v. Carson, 582 F.3d 827, 831 (7th
Cir. 2009) (citing United States v. McIntire, 516 F.3d 576,
578 (7th Cir. 2008)).
An issuing magistrate must “make a practical, common-
sense decision whether, given all the circumstances set
forth in the affidavit before [the court], including the
‘veracity’ and ‘basis of knowledge’ of persons sup-
plying hearsay information, there is a fair probability that
contraband or evidence of a crime will be found in
a particular place.” Illinois v. Gates, 462 U.S. 213, 238
(1983). Where, as here, an informant supplies the infor-
mation contained in the affidavit, several factors
inform our analysis: first, “the extent to which police
have corroborated the informant’s statements”; second,
“the degree to which the informant has acquired knowl-
8 No. 12-3874
edge of the events through firsthand observation”; third,
“the amount of detail in the affidavit”; fourth, “the
interval between the time of events that gave rise to
the need for a search warrant and that of the police
officer’s application for the warrant”; fifth, “whether
the informant testified at the probable cause hearing.”
Carson, 582 F.3d at 832 (citations omitted).
In challenging the issuing judge’s finding of
probable cause, Robinson emphasizes that the warrant
application contains no indication that “John / Jane Doe”
had provided credible tips to police in the past, or that
Elizondo had reason to believe that Doe was a reliable
source of information. Indeed, it is unclear whether
Elizondo knew of the informant at all before October 30,
2010, and the affidavit does not explain why Doe saw
fit to give such self-incriminating information to Chicago
police that afternoon. Under the Aguilar-Spinelli frame-
work that guided probable cause determinations before
Gates, these omissions might have doomed the warrant,
since the “veracity” of anonymous tips needed to be
supported by some assurance that the tip was credible
and reliable. See Gates, 462 U.S. at 229 n.4. Although
these considerations remain “highly relevant” under the
more flexible “totality-of-the-circumstances” approach
endorsed in Gates, they no longer dictate a finding that
the warrant lacked probable cause. Id. at 230.
The government points to other information con-
tained in the affidavit that supports the issuing magis-
trate’s probable cause finding. For example, the basis
of Doe’s knowledge was well developed. Doe provided
No. 12-3874 9
a first-hand account of purchasing specific quantities
of marijuana from Robinson and described the interior of
Robinson’s apartment in detail. Relatively little time
elapsed between the events described in the affidavit
and the officer’s appearance before a magistrate, and
Doe personally appeared before the Cook County judge
with Elizondo, giving the issuing magistrate an oppor-
tunity “to evaluate the informant’s knowledge, demeanor,
and sincerity.” United States v. Sims, 551 F.3d 640, 644
(7th Cir. 2008).
Less convincing is the government’s contention that
police officers “corroborated” Doe’s account. Taking
Doe past 1453 S. Springfield gave police officers some
limited amount of additional information—it would have
severely undermined Doe’s credibility, for instance, if
Tookie’s residence turned out to be a delicatessen—but
it sheds little light on the central question whether mari-
juana was being trafficked at the premises. See United
States v. Dismuke, 593 F.3d 582, 587-88 (7th Cir. 2010)
(“[The officer]’s other efforts corroborated only [the de-
fendant]’s identity and the fact that the informant
had correctly identified [the defendant]’s residence.
Accuracy on these innocent facts is important but does
not directly bolster the informant’s claim that [the defen-
dant] illegally possessed guns at his home.”).
Doe’s identification of a photograph of Robinson from
a police database, although superficially compelling
evidence of corroboration (since police officers knew
Robinson used the nickname “Tookie”), is, on closer
examination, also of minimal utility. If Doe selected
10 No. 12-3874
Robinson from a group of photographs depicting
several other persons not nicknamed “Tookie,” the iden-
tification would have had some limited probative
value, because it would suggest that Doe truly knew
someone by this name (and that Robinson was likely
he). The government concedes, however, that Doe did
not select Robinson from a proper photographic lineup.
Rather, the record suggests that Elizondo may simply
have shown Doe photographs of several men already
known to Chicago police as “Tookie.” Doe made his
selection from that array. In other words, Elizondo gave
Doe a multiple-choice exam with no wrong answers:
any selection made by Doe would have yielded a
suitable “Tookie” whose name could then be entered into
a warrant application. See National Institute of Justice,
Eyewitness Evidence: A Guide for Law Enforcement 29 (1999)
(“fair composition” of a lineup requires a minimum of five
“fillers” per identification procedure). Without some
independent link between the selected photograph and
the marijuana-dealing protagonist of Doe’s story (e.g., a
database entry listing 1453 S. Springfield as a known
address of the pictured “Harvey Robinson, a.k.a.,
‘Tookie’ ”), such an identification corroborates nothing.
Like the district court, however, we need not decide
whether there was sufficient evidence to support
the issuance of the search warrant, because the Fourth
Amendment’s exclusionary rule does not bar the admis-
sion of evidence seized in reasonable, good-faith
reliance on a search warrant that is later held to be de-
fective. United States v. Leon, 468 U.S. 897, 905 (1984).
We review de novo the district court’s finding that the
No. 12-3874 11
“good-faith exception” announced in Leon applies to a
particular warrant. United States v. Miller, 673 F.3d 688,
693 (7th Cir. 2012).
Robinson argues that the good-faith exception does
not apply here because “the warrant was so lacking in
indicia of probable cause that the police officers’ belief
in its validity was objectively unreasonable.” See Leon,
468 U.S. at 923. We rejected a similar argument in
Miller, where the defendant urged that police officers’
failure to corroborate information provided by a con-
fidential source rendered a warrant “so facially deficient
that an officer could not reasonably rely on it.” 673 F.3d
at 693. There, a confidential informant provided a
detailed, recent, firsthand account (likely against the
informant’s penal interest) that there was cocaine
within the defendant’s residence, and appeared before
the issuing judge to swear that the affidavit was true. A
neutral, detached magistrate issued a warrant based
on this information. Id. at 693-94. Without deciding
whether the warrant was supported by probable cause,
this court held that “a reasonable officer might rely on
the judge’s issuance of a warrant based on [such an af-
fidavit]” in good faith. Id. at 694. Here, we have a
similarly detailed, recent, firsthand account of alleged
wrongdoing that was likely self-incriminating; the in-
formant swore to this statement before an issuing magis-
trate; and police officers made at least some minimal
attempts to corroborate Doe’s allegations. Because
this warrant was not “so lacking in indicia of probable
cause” that reliance on its validity was objectively unrea-
12 No. 12-3874
sonable, the district court correctly denied Robinson’s
motion to suppress.
III
Robinson next argues that the trial court erred
in refusing to hold a Franks hearing to assess
the truthfulness of the statements in the warrant applica-
tion. “[W]here the defendant makes a substantial pre-
liminary showing that a false statement knowingly
and intentionally, or with reckless disregard for the
truth, was included by the affiant in the warrant
affidavit, and if the allegedly false statement is
necessary to the finding of probable cause, the Fourth
Amendment requires that a hearing be held at the defen-
dant’s request.” Franks v. Delaware, 438 U.S. 154, 155-56
(1978). Leon’s good-faith exception “does not preclude
inquiry into the knowing or reckless falsity of the
affidavit on which [an otherwise valid finding of
probable cause] was based.” 468 U.S. at 914. We review
the district court’s denial of Robinson’s request for a
Franks hearing for clear error. United States v. McMurtrey,
704 F.3d 502, 508 (7th Cir. 2013).
Robinson’s preliminary showing consisted of
sworn declarations from Robinson and his wife that
Robinson was not at 1453 S. Springfield before 8:00 p.m. on
September 30, 2010; this would make it impossible for
Robinson to have sold marijuana to Doe at that
address earlier in the day, as Doe alleged. Robinson
acknowledges, however, that the relevant inquiry is not
whether Doe provided false information to police
No. 12-3874 13
officers or the court, but whether Elizondo “acted reck-
lessly because [s]he seriously doubted or had obvious
reason to doubt the truth of the allegations” in the search
warrant application. United States v. Johnson, 580 F.3d
666, 670 (7th Cir. 2009). Robinson does not argue that
Doe was acting as a “government agent” when Doe
appeared before the court. See United States v. McAllister,
18 F.3d 1412, 1417 (7th Cir. 1994). Instead, Robinson
argues that police officers acted recklessly because they
failed to do more to corroborate Doe’s account.
The district court did not commit clear error in con-
cluding that this showing was not enough to call for a
Franks hearing. That is so even though the Chicago
police could have done more to verify Doe’s account,
and their failure to treat it with greater skepticism
may have been negligent. But even accepting Robinson’s
declarations as true, there is no evidence that the
police officers had obvious reason to doubt that Doe
had purchased marijuana from someone named Tookie
earlier that day. Without more, Robinson has not made
a “substantial preliminary showing” that officers acted
“with reckless disregard for the truth.”
Robinson also invokes the law-of-the-case doctrine,
arguing that the district court was obliged to hold a
Franks hearing because a different district judge
to whom the case originally was assigned found that
Robinson had made a sufficient threshold showing.
While, as a general matter, courts “should be loathe” to
revisit prior decisions of their own or coordinate courts,
Christianson v. Colt Indus. Operating Corp., 586 U.S. 800,
14 No. 12-3874
817 (1988), an “[a]ctual decision of an issue is required
to establish the law of the case,” 18B C HARLES A LAN
W RIGHT, A RTHUR R. M ILLER & E DWARD H. C OOPER, F EDERAL
P RACTICE & P ROCEDURE § 4478 (3d ed. 2005). Even if it
can be argued that the original judge made “an actual
decision of an issue” in determining that Robinson had
made a “substantial preliminary showing,” the law-of-the-
case doctrine “merely expresses the practice of courts
generally to refuse to reopen what has been decided, not
a limit to their power.” Messinger v. Anderson, 225 U.S.
436, 444 (1912) (Holmes, J.). The court did not err in
reconsidering the question. It afforded both parties an
opportunity to reargue their positions, and only then
did it decide not to conduct a hearing.
IV
After closing arguments, the court read aloud the
previously agreed-upon jury instructions. One of these
instructions was a standard limiting instruction
addressing Robinson’s stipulation that he had a prior
felony conviction. As the written instruction (correctly)
noted, the jury could consider this stipulation in its de-
liberations, but only for the limited purpose of assessing
whether Robinson was a convicted felon, an element of
a Section 922(g)(1) offense. See F ED. R. E VID. 105, 404.
When the court read the instruction aloud, however,
it decided to omit the critical admonition that the
“jury should consider this evidence only for this limited
purpose.”
No. 12-3874 15
The oral jury instructions here were not just
incomplete, as the government argues, but inaccurate.
Before bringing the jury’s attention to Robinson’s
criminal history, the court reminded the jurors of
their duty:
to decide the facts from the evidence in the case . . . .
The evidence consists of the testimony of the
witnesses, the exhibits admitted in evidence, and
stipulations. A stipulation is an agreement between
both sides that certain facts are true . . . . In our lives,
we often look at one fact and conclude from it that
another fact exists. In law we call this ‘inference.’
A jury is allowed to make reasonable inferences . . .
based on the evidence in the case.
These are standard and appropriate instructions in
most contexts. But the rules of evidence often demand
some refinement. Without an additional instruction to
consider the stipulation only for the limited purpose
of determining whether Robinson was a convicted
felon, this charge communicated to jurors that they
were permitted, and perhaps even obliged, to consider
the stipulation for the purpose of determining whether
Robinson possessed the firearm. A lay juror could infer
that a convicted felon is more likely to carry a dangerous
weapon than someone without a track record of
criminal wrongdoing. This inference, however, is
precisely what Federal Rule of Evidence 404(b) forbids.
The complete and accurate set of written instructions
given to the jury did not cure this error. The govern-
ment highlights the written instructions in arguing that
16 No. 12-3874
the jury was not misled if we evaluate “the instructions
as a whole,” United States v. Javell, 695 F.3d 707,
714 (7th Cir. 2012), but this requires us to make two as-
sumptions: (1) that the jury noticed that the 28-page
document was inconsistent with the oral instructions
they had heard, and (2) that the jury decided to resolve
this conflict in favor of the written instructions.
Although the court twice told the jurors to “reread
all instructions,” nothing assures us that these two as-
sumptions are valid here. Our criminal justice system
has relied on oral jury instructions since its inception,
and while there is ample evidence that the increasingly
common use of supplementary written instructions
can help jurors understand difficult legal concepts,
see Nancy R. Marder, Bringing Jury Instructions Into the
Twenty-First Century, 81 N OTRE D AME L. R EV. 449, 490-
510 (2006), a trial judge commits error if she fails to “read
aloud jury instructions in their entirety,” United States
v. Perry, 479 F.3d 885, 893 (D.C. Cir. 2007); accord Guam
v. Marquez, 963 F.2d 1311, 1314-15 (9th Cir. 1992), United
States v. Noble, 155 F.2d 315, 318 (3d Cir. 1946).
The more difficult question is whether this mistake
should be disregarded as harmless error because it
“does not affect substantial rights.” See F ED. R. C RIM. P.
52(a). The “discrimination [harmless error review]
requires is one of judgment transcending confinement
by formula or precise rule.” Kotteakos v. United States,
328 U.S. 750, 761 (1946). Because “it is not the appellate
court’s function to determine guilt or innocence,” our
inquiry cannot stop with the question “whether there
was enough to support the result, apart from the phase
No. 12-3874 17
affected by the error.” Id. at 763, 765. Rather, we
examine the effect of the error on the decisionmaking
process as a whole, asking “whether the error itself
had substantial influence,” id. at 765; see also Miller,
673 F.3d at 700. Generally speaking, a finding of harm-
lessness is appropriate only if an appellate court can
say “with fair assurance” that the judgment was not
“substantially swayed by the error.” Kotteakos, 328 U.S.
at 765. The burden of demonstrating harmlessness rests
with the government. See O’Neal v. McAninch, 513 U.S.
432, 438-39 (1995); United States v. Olano, 507 U.S. 725,
734 (1993).
The government argues that the jury-instruction
error was harmless based on the strength of the other
evidence against Robinson. It relies primarily on
the testimony of Sergeant Blas, a 21-year veteran of the
Chicago police department and the supervisor of the
search team, who said that Robinson admitted that
the revolver was his at the time of the search; and the
testimony of Elizondo and Moore, who both said
that Robinson provided a second confession during a
subsequent interrogation. These statements were
included in an “Incident Report” authored by Moore
later that day. The sole issue at trial was relatively
simple: did the gun really belong to Robinson? We
agree with the government that, if the jury believed
the testimony of these three witnesses, the case against
Robinson was open and shut.
Without the testimony of these three officers, how-
ever, there was no evidence (e.g., fingerprints, witness
18 No. 12-3874
statements) tying Robinson to the revolver, and so Robin-
son’s defense strategy focused on attacking the officers’
credibility. Robinson argued that the Chicago police
expected to find evidence of a significant drug-dealing
operation at 1453 S. Springfield, consistent with the
information provided by Doe in the warrant affidavit,
and they were disappointed to discover only negligible
quantities of marijuana. Authorities thought that
Robinson could still lead them to other persons
involved in the drug trade, however, and they were
hoping to leverage the bogus firearm accusation to pres-
sure Robinson into “cooperating” with these efforts.
Robinson’s opening and closing arguments suggested
two different scenarios consistent with this theory: (1) the
gun was planted by Chicago police; (2) the gun was not
planted, but belonged to someone else inside the apart-
ment, and the Chicago police fabricated Robinson’s
two purported confessions to encourage him to talk.
Robinson developed the first possibility through cross-
examination of Blas. According to Blas, the nine or
ten members of the search team entered the apartment
in an orderly fashion, without any need for force,
since Robinson’s grandmother opened the door. Blas,
the search supervisor, was the last to enter. Once across
the threshold, Blas said that he observed a laundry
basket just to his right, where he spotted a large,
shiny revolver resting atop the clothes. We include a
photograph of the gun, taken before police officers
moved any of the evidence, to highlight the gun’s con-
spicuous placement. To credit Blas’s testimony, the
jury would have to believe that eight or nine trained
No. 12-3874 19
Chicago police officers, conducting a search for evidence
of criminal wrongdoing, passed within inches of a
plainly visible gun without noticing it. Robinson urged
that this was implausible.
After calling for another officer to take control of the
gun, Blas testified that he then read Miranda warnings
to Robinson (who was detained on the sofa in the
next room) and asked him “if there was anything in the
residence that shouldn’t be here.” According to Blas,
Robinson replied, “ ‘Yes, that’s my gun,’ or ‘The gun
that’s in the laundry basket.’ ” (We note that the latter
reply implies only knowledge of the gun’s presence,
not necessarily possession, though the defense did not
advance this argument to the jury.) Although there
20 No. 12-3874
were eight or nine other police officers in the apartment
at this time, and Moore testified that she was able to
hear Sergeant Blas reading a Miranda warning, no other
witnesses testified that they overheard Robinson’s
inculpatory statement.
Robinson also attacked the credibility of Moore and
Elizondo, who testified that Robinson again acknowl-
edged that he owned the gun during the later station-
house interview. Despite the fact that officers had just
conducted a search expecting to find marijuana—and,
indeed, had found a tiny bit of marijuana—both officers
testified that they were uninterested in Robinson’s “coop-
eration” in ongoing drug investigations. Indeed,
Elizondo denied asking Robinson about anything other
than the gun during the interview:
Q: What do you recall saying to Mr. Robinson in the
interview room?
A: Where he had purchased the gun, or where—where
he had gotten the gun from.
Q: That’s it?
A: Yes.
Q: That’s the only thing you said the whole time
you were sitting in the interview room?
A: I asked him that question and then he related
the information that’s on my report.
Neither officer retained notes from the interrogation,
asked Robinson to provide a written confession, made
an audio recording, or sought Robinson’s signature or
No. 12-3874 21
initials to confirm their summary of Robinson’s state-
ments. Moore and Elizondo also seemed shaky on the
particulars of the search: although both officers remem-
bered certain details that were useful to the govern-
ment’s case, they struggled to remember other pertinent
information solicited by the defense, such as the layout
of the apartment or the number of other people
present at the time of the search.
In an effort to bolster Moore and Elizondo’s account,
the government highlighted the fact that the Incident
Report mentioned businesses (a gas station and a
Wendy’s restaurant) near the intersection where
Robinson purportedly admitted buying the gun. The
government argued that this served as proof that the
officers’ accounts were genuine, since Moore and
Elizondo testified that they were unfamiliar with the
area at the time of the search, and photographs taken
after the interrogation confirmed the presence of a gas
station and a Wendy’s restaurant at this location. If
police officers were intent on manufacturing a false
statement, however, they could have included certain
details to make the statement seem more legitimate.
Arguing this theory, Robinson elicited from Moore that
the officers had internet access at the stationhouse
where the interview took place, allowing them to pull
up a picture of the intersection in question. See
http://goo.gl/maps/YGHty (last visited July 29, 2013).
And it is at least conceivable that other information
already known to Chicago police—arrest records, gang
affiliations, other database entries—linked Robinson
to this area.
22 No. 12-3874
We indulge these hypotheticals not because we are
persuaded that the police witnesses testified dishonestly:
it is not our role to “become in effect a second jury to
determine whether the defendant is guilty.” Neder v.
United States, 527 U.S. 1, 19 (1990) (quoting R. T RAYNOR,
T HE R IDDLE OF H ARMLESS E RROR 21 (1980)). Still, we
note that deliberations lasted for nearly 11 hours before
the jury returned its guilty verdict, a result that was all
but inescapable if the jury credited the government’s
witnesses. Particularly where there is reason to think
that the jury had difficulty in reaching its verdict, we
must tread cautiously before concluding that an error
was harmless. Kotteakos, 328 U.S. at 764 (“[Harmless
error review] must take account of what the error meant
to the [jury], not singled out and standing alone, but
in relation to all else that happened.”).
With this record in mind, we now turn to weighing
the impact of the trial court’s error here. On the one
hand, the government never argued to the jury that it
should consider Robinson’s prior felony conviction for
an improper purpose. This diminishes to some extent
the risk that the prohibited inference (that Robinson
was more likely to possess the gun because he was a
convicted felon) entered into the jury’s deliberations.
On the other hand, there are well-recognized dangers
inherent in allowing juries to consider any evidence of
a defendant’s prior trouble with the law in subsequent
criminal proceedings:
The inquiry is not rejected because character is ir-
relevant; on the contrary, it is said to weigh too
No. 12-3874 23
much with the jury and to so overpersuade them as
to prejudge one with a bad general record and deny
him a fair opportunity to defend against a particular
charge. The overriding policy of excluding such
evidence, despite its admitted probative value, is the
practical experience that its disallowance tends to
prevent confusion of issues, unfair surprise and
undue prejudice.
Michelson v. United States, 335 U.S. 469, 475-76 (1948)
(internal citations omitted); see also United States v.
Hope, 906 F.2d 254, 264 (7th Cir. 1990) (“The danger inher-
ent in submitting evidence of a prior conviction to a jury
is self-evident [and] exist[s] with or without [a] stipula-
tion.”). This helps explain why the evidentiary rule gov-
erning limiting instructions is written in mandatory
terms, providing that “the court, on timely request, must
restrict the evidence to its proper scope and instruct
the jury accordingly.” FED. R. E VID. 105 (emphasis added).
In the end, we cannot say “with fair assurance” that
the judgment was not substantially swayed by the trial
court’s error. Kotteakos, 328 U.S. at 765. Robinson’s
defense hinged on convincing the jury that several
police officers fabricated his confessions, a theory that
was not implausible. It may be that Robinson’s criminal
history played no role in deliberations, but it is
also possible that Robinson’s criminal history helped
persuade the jury that the police officers were telling
the truth about the provenance of the revolver and Robin-
son’s confessions. The government has not met its
burden of establishing that this was not what occurred.
24 No. 12-3874
“[I]n the face of the misdirection and in the circum-
stances of this case, we cannot assume that the lay triers
of fact were so well informed upon the law or that
they disregarded the permission expressly given” to
draw the improper inference. Id. at 769. The error
was not harmless.
V
Robinson also raises two additional issues: he argues
that the district court violated his rights under the Con-
frontation Clause of the Sixth Amendment by limiting
certain lines of cross-examination of police witnesses,
and that the district court abused its discretion in failing
to declare a mistrial as jury deliberations entered their
ninth hour. Since these issues are unlikely to recur in
precisely the same manner on remand, we refrain
from addressing them.
We R EVERSE the district court’s judgment and
R EMAND for a new trial.
7-31-13