United States v. Scott Books , 914 F.3d 574 ( 2019 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17-3493
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
SCOTT BOOKS,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Central District of Illinois.
No. 1:16-cr-10037 — Michael M. Mihm, Judge.
____________________
ARGUED NOVEMBER 9, 2018 — DECIDED JANUARY 29, 2019
____________________
Before BAUER, BRENNAN, and SCUDDER, Circuit Judges.
SCUDDER, Circuit Judge. On trial for bank robbery, Scott
Books chose not to testify in his own defense and was found
guilty and sentenced to 180 months’ imprisonment. He now
challenges two pretrial decisions by the district court. The
first allowed eyewitness testimony at trial from the two bank
tellers that Books alleged based their identification of him as
the robber not on personal knowledge, but rather on infor-
mation improperly supplied by a police detective. The sec-
2 No. 17-3493
ond ruling would have allowed the government, had Books
chosen to testify at trial, to impeach him with physical evi-
dence directly tying him to the robbery—evidence the police
learned of (and then recovered) only as a result of a confes-
sion the district court separately had determined was unlaw-
fully coerced.
Neither challenge succeeds. The district court did not err
in finding the eyewitness identifications reflected the tellers’
firsthand knowledge of Books, and thus allowing their tes-
timony at trial was entirely proper. Nor can we conclude
that the district court’s conditional impeachment ruling,
even if wrong on the law, mandates reversal in light of the
overwhelming weight of evidence against Books. So we
affirm.
I
A
On July 28, 2016 a man robbed the Land of Lincoln Credit
Union in Normal, Illinois. Dressed in a black hooded sweat-
shirt, wearing a mask and neon gloves, the robber ap-
proached the counter and, while motioning toward the
drawer with what appeared to be a black handgun, de-
manded “all the money.” The robbery lasted all but 20 sec-
onds, with the offender making off with $18,000 and fleeing
in a Buick SUV.
Two tellers recognized the robber’s voice and manner-
isms and immediately identified him as Scott Books—a long-
time customer of the credit union. Holly Bateman told her
supervisor (and later the police) she was 99% certain Books
was the robber because she had interacted with him on at
least six prior occasions. The second teller, Susan Phelps,
No. 17-3493 3
agreed with Bateman’s identification of Books as the offend-
er. A third witness, James Teidman, was driving by the bank
when he saw the robber running from the bank with a gun,
only then to speed away in a Buick SUV.
The police arrested Books the next day. After waiving his
Miranda rights and agreeing to an interview, he confessed to
the robbery, while also telling the police where they could
find the gloves, clothing, and fake gun he used. The police
found these items exactly where Books described, and in
time a grand jury indicted Books for the robbery.
B
The district court held a series of pretrial hearings to de-
termine the admissibility of evidence contested by Books.
Three of those rulings are significant to this appeal.
First, the district court suppressed Books’s confession,
finding that the police officers overstepped and overcame
Books’s will by threatening to arrest his wife and take his
children into custody if he did not own up to his role in the
robbery—rendering the confession involuntary. The court
suppressed both the confession and its physical fruits—
specifically, the clothing, gloves, and fake gun the police re-
covered based upon Books telling them where to look.
Second, the district court denied Books’s motion to pre-
vent the two bank tellers (Bateman and Phelps) from testify-
ing at trial. Books had sought to exclude their testimony on
the basis that the police detective who investigated the rob-
bery improperly tainted their identifications when, a day af-
ter the robbery, he allegedly told both witnesses that Books
had confessed to the crime. The government disagreed, tak-
ing the position that the detective in no way revealed
4 No. 17-3493
Books’s confession and thus in no way influenced the tellers’
clear and definitive identification of Books as the robber. The
district court held a hearing, received testimony from the
tellers and detective, and found it “clear from th[e] record
that [both tellers] have a truly independent source of identi-
fication of [Books] other than any suggestion that would
have been put in their mind by the officer.” Accordingly, the
district court permitted the tellers to testify at trial.
Third, the district court considered but reserved defini-
tively ruling until trial on the government’s motion for per-
mission to impeach Books with the fruits of his confession in
the event he chose to testify. Books opposed the motion and
urged the district court to hold that the price for the police
unlawfully coercing his confession should be the suppres-
sion of all incriminating evidence (his admission and the
physical fruits) for all purposes, including impeachment. The
district court said it was inclined to allow some impeach-
ment but reserved a final ruling unless and until Books
chose to testify and the government sought to impeach him
on cross-examination with his prior statements describing
the whereabouts of the clothing he wore during the robbery.
The district court cast its ruling this way: “[I]f and when we
get to that point [of the trial], any questions that the gov-
ernment wished to ask the defendant if he testifies, I would
have to hear exactly what the questions are outside the pres-
ence of the jury so there could be specific objections.”
No. 17-3493 5
C
In the end, Books chose not to testify at trial, and thus
neither his coerced confession nor the resulting physical
fruits came into evidence. The government nonetheless pre-
sented a strong case, including testimony from these wit-
nesses:
 Bank teller Holly Bateman identified Books
as the robber. She testified that she knew
Books from her work at the credit union
and immediately recognized him as the
robber—so much so that she almost said
“Scott, can you remove your mask?”
Bateman told the jury that she “instantly”
recognized Books’s voice and likewise
knew it was Books from his distinct
mannerisms. Asked at trial about her
confidence level that Books committed the
robbery, Bateman testified that she was
110% sure because the incident had
replayed over and over in her mind.
 Susan Phelps, the second bank teller, also
identified Books as the robber. While not as
fast as Bateman to recognize Books during
the robbery, Phelps testified she was confi-
dent Books was the offender based on his
unique mannerisms, including his walk and
jittery disposition.
 Phillip Meyer, a friend and former cowork-
er of Books, testified that he had received a
text message from Books on the day of the
6 No. 17-3493
robbery or the day before asking, “I wonder
what bank I should rob today?”
 Todd Hogan, the bank’s vice president, tes-
tified that he remembered teller Holly
Bateman calling him immediately after the
robbery to tell him she was 99% sure the
robber was Books. Hogan also explained
that Books’s business account had been
flagged in the bank’s system on multiple
occasions due to attempts to deposit checks
backed by insufficient funds.
 James Teidman testified that he was driving
by the credit union when the robbery oc-
curred and saw a Buick SUV, the same
model later tracked to Books’s residence,
flee the scene.
While Books chose not to testify, his counsel vigorously
cross-examined the government’s witnesses. When it came
to tellers Bateman and Phelps, defense counsel challenged
their recollection of the robbery, probed the reliability of
their identifications of Books and the getaway car, and exam-
ined their memory of the robber’s dress, voice, and manner-
isms—all in an effort to question their overall confidence
that Books was the offender. At no point during the trial did
Books’s counsel or the government refer to Books’s confes-
sion or to the police detective’s (allegedly impermissible) in-
teraction with the two tellers. The jury returned a guilty ver-
dict.
No. 17-3493 7
II
A
Books challenges the district court’s pretrial ruling deny-
ing his motion to preclude the two tellers from testifying at
trial on the basis that the police detective allegedly tainted
their eyewitness identifications by telling them that he had
confessed to the robbery. This misconduct, Books contends,
violated his Fifth Amendment right against self-
incrimination. He further argues that the district court’s pre-
trial ruling too circumscribed his Sixth Amendment right to
cross-examine the tellers at trial. The facts belie both conten-
tions.
While all agree that our review of legal issues is de novo,
the parties dispute the legal standard that governs the ad-
mission at trial of the bank tellers’ identification testimony.
Books invites us to follow Kastigar v. United States, and
thereby place the burden on the government to show that
the tellers’ testimony was “derived from legitimate inde-
pendent sources” and, as a result, not unduly influenced by
the police detective. See 406 U.S. 441, 461–62 (1972). The
government, on the other hand, urges us to read Kastigar as
more narrowly applying to, and not beyond, the setting that
gave rise to its holding—circumstances in which a witness
testifies pursuant to a grant of immunity. See id. The gov-
ernment instead asks us to employ the less onerous, due-
process based standard found in cases like Neil v. Biggers,
409 U.S. 188 (1972), where the focus is more simply on the
reliability of in-court identification testimony with the de-
fendant (not the government) bearing the initial burden of
showing that the government did something to taint the
identification. See also, e.g., United States v. L’Allier, 838 F.2d
8 No. 17-3493
234, 239 (7th Cir. 1988) (explaining that the defendant bears
the burden of showing that the challenged identification was
unduly suggestive).
The proper reach and application of the Kastigar rule has
not gone unnoticed by other courts. See, e.g., United States v.
Allen, 864 F.3d 63, 90 n.121 (2d Cir. 2017) (“[I]t is not clear
whether all involuntary statements or all compelled
statements should be subjected to the strong medicine
prescribed in Kastigar, or whether some other doctrine
should govern in certain circumstances.”); United States v.
Jones, 542 F.2d 186, 199 n.24 (4th Cir. 1976) (discussing
uncertainty over Kastigar’s application to coerced
confessions).
We have not had a case requiring us to choose sides, and
this appeal does not either. We can comfortably resolve the
case on narrower grounds, because under either Kastigar or
Biggers (or hybrids of either standard), the evidence was
more than sufficient to show that the two tellers, Bateman
and Phelps, identified Books based on their prior dealings
and first-hand familiarity with him, without regard to any
information supplied by the police detective. At no point did
the tellers, and most especially Holly Bateman, ever waiver
in their confidence that Books was the robber. So, whether
assessed under Kastigar or a lesser standard, Books’s chal-
lenge to the district court’s admission of the tellers’ testimo-
ny cannot succeed.
Books fares no better when contending that the district
court’s ruling on the tellers’ testimony also violated the Sixth
Amendment by limiting his ability to confront and cross-
examine these witnesses. A fulsome cross-examination,
Books posits, would have entailed questioning how the wit-
No. 17-3493 9
nesses arrived at their identification testimony—a line of
questioning, as Books sees it, that necessarily would have
exposed that the police improperly told both tellers that he
had confessed to the robbery. We cannot agree, as Books’s
position misfires on the law and facts.
A defendant’s Sixth Amendment right to confront wit-
nesses is not absolute, but instead subject to reasonable limi-
tations imposed by the district court. See United States v.
Saunders, 166 F.3d 907, 918 (7th Cir. 1999) (citing Delaware v.
Van Arsdall, 475 U.S. 673, 679 (1986)). The limitation Books
challenges came from the district court’s pretrial ruling sup-
pressing his coerced confession. This ruling favored Books
and, beyond precluding the government from using the con-
fession as evidence, naturally limited how he would ap-
proach cross-examining government witnesses, for he right-
ly wanted to avoid the jury learning that he had confessed to
the robbery. But accepting a necessary and proper limitation
on cross-examination does not, without more, run afoul of
the Confrontation Clause, especially where, as here, Books
was able as a practical matter to adequately, and indeed vig-
orously, cross-examine both bank tellers. See United States v.
Sasson, 62 F.3d 874, 882 (7th Cir. 1995) (explaining that the
Confrontation Clause “guarantees only an opportunity for a
thorough and effective cross-examination, ‘not cross-
examination that is effective in whatever way, and to what-
ever extent, the defense might wish’”) (quoting Delaware v.
Fensterer, 474 U.S. 15, 20 (1985)). And Books was able to do
so without ever insinuating, much less revealing, that he had
confessed to the robbery. The Confrontation Clause required
no more.
10 No. 17-3493
B
This brings us to Books’s Fifth Amendment challenge to
the district court’s pretrial impeachment ruling. Books ar-
gues that the ruling—allowing the government, if he chose
to testify, to cross-examine him with the fruits of his coerced
confession—created an unconstitutional predicament and
catch-22: he was forced to either forfeit his right to testify in
his own defense, or, if he did take the stand, face a surefire
conviction once the government impeached him with the
fruits of his confession.
Books may be right in his contention that the district
court, even though reserving a final ruling until after seeing
whether he chose to testify and what questions the govern-
ment wanted to ask on cross-examination, committed legal
error in concluding, however conditionally, that some im-
peachment with the physical fruits of a coerced confession
may be permissible. While that proposition is not settled in
the law, Books’s position is not without some support. See,
e.g., Chavez v. Martinez, 538 U.S. 760, 769 (2003) (plurality
opinion) (emphasizing, albeit in dicta, that “those subjected
to coercive police interrogations have an automatic protection
from the use of their involuntary statements (or evidence de-
rived from their statements) in any subsequent criminal tri-
al”).
The government urges us to avoid answering this ques-
tion. Pointing to Luce v. United States, 469 U.S. 38 (1984), the
government says that Books waived any challenge to the dis-
trict court’s ruling by not testifying at trial. The govern-
ment’s position finds substantial, if not dispositive, support
in our decision in United States v. Wilson, 307 F.3d 596, 600–
01 (7th Cir. 2002), where the defendant chose not to testify at
No. 17-3493 11
trial and, as a result, we declined to review the merits of his
claim that a pretrial ruling on the admissibility of particular
impeachment testimony violated his Fifth Amendment right
to remain silent.
The whole point of the rule announced in Luce, which we
extended to the domain of a Fifth Amendment claim in
Wilson, is that courts should refrain from reviewing claims
that a particular line of cross-examination would have
violated a defendant’s right against self-incrimination when
the defendant in fact never testified at trial and thus never
underwent cross-examination. Any other course, the
reasoning runs, would require too much speculation on how
the testimony and related questioning would have played
out at trial. See Wilson, 307 F.3d at 600–01.
Even if we agreed with Books that Wilson should be read
more narrowly, our ensuing reasoning would not travel a
path that resulted in an award of relief. Both parties agree
that the ultimate merits of Books’s Fifth Amendment claim is
subject to harmless error review. Indeed, the doctrine of
harmless error finds straightforward application on the evi-
dence presented at Books’s trial.
Not every constitutional error automatically requires the
reversal of a defendant’s conviction. Instead, as the Supreme
Court has explained, “if the government can show ‘beyond a
reasonable doubt that the error complained of did not con-
tribute to the verdict obtained,’ … then the error is deemed
harmless and the defendant is not entitled to reversal.”
Weaver v. Massachusetts, 137 S. Ct. 1899, 1907 (2017) (quoting
Chapman v. California, 386 U.S. 18, 24 (1967)). This precise
standard would apply if Books had testified and was sub-
jected to certain impermissible impeachment. See Arizona v.
12 No. 17-3493
Fulminante, 499 U.S. 279, 306 (1991) (holding that the doc-
trine of harmless error applies to the violation of the defend-
ant’s Fifth Amendment right against self-incrimination
through the admission at trial of an involuntary confession).
And the same analysis would apply if we accept Books’s
contention that the district court’s ruling constructively fore-
closed his decision to take the stand. See Ortega v. O’Leary,
843 F.2d 258, 262 (7th Cir. 1988) (applying harmless error
analysis to the denial of the right to testify); Alicea v. Ganon,
675 F.2d 913, 925 (7th Cir. 1982) (reaching the same conclu-
sion).
In reviewing the trial record, our obligation is to deter-
mine whether any error was harmless beyond a reasonable
doubt, and we do so in no small part by evaluating the over-
all strength of the prosecution’s case. See Jones v. Basinger,
635 F.3d 1030, 1052 (7th Cir. 2011). On this front, Books faces
an insurmountable burden because the evidence against him
at trial was overwhelming: the eyewitness testimony of the
two bank tellers, the text message to a friend indicating his
desire to rob a bank, the identification of his car as the geta-
way vehicle, and the testimony of over a dozen other wit-
nesses—all in the broader context of his financial difficulties
and prior disputes with the Land of Lincoln Credit Union.
On this record, any error in the district court’s pretrial ruling
on the scope of permissible impeachment was harmless be-
yond a reasonable doubt.
III
Two other matters warrant attention. First, relying on
Brooks v. Tennessee, 406 U.S. 605 (1972), Books argues that the
district court’s impeachment ruling deprived him of the
“guiding hand of counsel” by undermining his attorney’s
No. 17-3493 13
ability to make informed and independent decisions about
the best trial strategy, including whether Books should take
the stand in his own defense. Id. at 612. But Brooks provides
no refuge, for there the Supreme Court considered a state
statute that required a defendant, if he chose to put on a de-
fense at trial, to be the first defense witness to testify, forcing
a preemptive decision to take the stand absent “a full survey
of all the case.” Id. at 608. Books, in contrast, faced only the
uncertainty that often accompanies an unfavorable (and
perhaps even incorrect) pretrial ruling on the scope of im-
peachment. Whatever limitations this may have imposed on
the strategic choices of Books’s defense, they were far afield
from the extreme circumstances defense counsel confronted
in Brooks.
Finally, we reject Books’s invitation to overturn his con-
viction on the basis of cumulative error. We have reviewed
the record carefully and cannot get anywhere near conclud-
ing that there are “multiple errors [that] so infected the jury’s
deliberation that they denied the petitioner a fundamentally
fair trial.” United States v. Allen, 269 F.3d 842, 847 (7th Cir.
2001). The bottom line is that Books’s cumulative error ar-
gument cannot overcome the overwhelming evidence pre-
sented against him at trial.
For these reasons, we AFFIRM.