United States v. Jeremiah Edwards ( 2022 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 20-3297
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JEREMIAH D. EDWARDS,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Western District of Wisconsin.
No. 18-cr-162 — James D. Peterson, Chief Judge.
____________________
ARGUED SEPTEMBER 29, 2021 — DECIDED MAY 16, 2022
____________________
Before EASTERBROOK, RIPPLE, and ST. EVE, Circuit Judges.
ST. EVE, Circuit Judge. A string of ten armed robberies
plagued the Madison, Wisconsin area in the fall of 2018. Law
enforcement believed that one man was behind all ten. One of
these robberies occurred on the evening of November 4, 2018,
when the unidentified suspect, subsequently identified as Jer-
emiah Edwards, robbed Neil’s Liquor in Middleton, Wiscon-
sin. Security camera footage enabled law enforcement officers
to obtain a warrant for a GPS tracking device on Edwards’s
2 No. 20-3297
vehicle, a black Mitsubishi Outlander. After another armed
robbery, a high-speed chase, and the seizure of key evidence,
the government charged Edwards with Hobbs Act robbery,
brandishing a firearm in furtherance of a crime of violence,
being a felon in possession of a firearm, possession with intent
to distribute marijuana, and possession of a firearm in further-
ance of a drug trafficking crime. A jury found Edwards guilty
of all counts. Edwards appeals, claiming a series of errors. We
see no error and affirm.
I. Factual Background
A. The Robbery of Neil’s Liquor
On November 4, 2018, a man—subsequently identified as
Edwards—robbed Neil’s Liquor in Middleton, Wisconsin. Six
security cameras captured Edwards and the robbery.
Edwards parked a black Mitsubishi Outlander on a street
behind Neil’s Liquor, crossed a wooden footbridge connected
to the store’s parking lot, and entered the liquor store. Mo-
ments later, Edwards robbed Neil’s Liquor at gunpoint then
escaped out the back door. Edwards left the scene on foot,
leaving the parked Outlander behind.
Two hours later, a white SUV parked in Neil’s Liquor’s lot.
A man (presumably Edwards), a woman, and a dog exited the
SUV and walked onto the wooden footbridge. The pair then
split up, with the man driving off in the Outlander and the
woman and dog returning to the white SUV.
Detective Schultz of the Middleton Police Department
learned the Outlander was registered to Edwards’s ex-girl-
friend, who told Detective Schultz that she sold Edwards the
Outlander in 2016. Based on the security camera footage of
the robbery, Detective Schultz’s observations, and the
No. 20-3297 3
statements from Neil’s Liquor’s cashier and Edwards’s ex-
girlfriend, Detective Schultz prepared a warrant application
to place a GPS tracking device on the Outlander. The support-
ing affidavit included Edwards’s criminal history, which De-
tective Schultz described as “lengthy … including but not lim-
ited to arrests for” six robberies between 1998 and 2005. Ed-
wards in fact had fifteen arrests and five convictions. A judge
issued the warrant, and on November 7, 2018, law enforce-
ment officers placed the GPS tracking device on Edwards’s
Outlander.
B. The Robbery of O’Reilly Auto Parts
On November 8, 2018, Edwards and co-defendant Ke-
nasha Woods robbed the O’Reilly Auto Parts in Madison, Wis-
consin. Woods met Edwards, who she knew as “Moe,”
through the Moorish Science Temple in Madison. The night of
the O’Reilly Auto Parts robbery Edwards offered Woods a
ride home after service at the Temple. Edwards and Woods
smoked marijuana as they drove. At some point, Edwards
pulled a handgun on Woods and ordered her to help him with
a robbery. Armed with handguns, they robbed O’Reilly Auto
Parts and left the scene in the Outlander.
Law enforcement responded to the robbery and located
the Outlander using the GPS tracking device. Edwards and
Woods fled, leading the officers on a high-speed chase. When
the officers finally caught up to the Outlander, they discov-
ered it crashed and empty. The officers located Woods nearby
and brought her to the police station for questioning. Ed-
wards was nowhere to be found.
At the station, officers escorted Woods into an interview
room, where Detective Johnson of the Madison Police
4 No. 20-3297
Department questioned her. Woods initially told a fabricated
story. Detective Johnson then opened a binder on the table
and momentarily displayed Edwards’s booking photo from a
previous arrest. Woods saw the photo, but neither Woods nor
Detective Johnson mentioned it. Detective Johnson proceeded
to explain everything law enforcement knew about “Moe”
and the O’Reilly Auto Parts robbery. Woods then positively
identified “Moe” as the man in the booking photo and
claimed she could pick “Moe” out of a crowd. Detective John-
son showed her Edwards’s booking photo. Woods confirmed
it was Edwards and noted that Edwards had hair in the photo,
but he was now bald. The government obtained a warrant for
Edwards’s arrest on November 13, 2018, and on November
28, 2018, a grand jury indicted him.
C. Search of Edwards’s Outlander
On November 9, 2018, the Madison Police Department ob-
tained a search warrant for the Outlander. Officers searched
the vehicle and recovered a loaded 9mm handgun, cash,
drugs, gloves, a ski mask, and items from Woods’s purse. Law
enforcement returned the warrant on November 12, 2018,
sealed the Outlander with evidence tape, and stored it in an
impound facility without conducting a separate inventory
search.
In December 2018, Woods was incarcerated and awaiting
trial. Edwards was still missing. The night of her arrest,
Woods informed officers that her personal handgun was in a
pink purse in the back of “Moe’s” car. Now, Woods’s counsel
asked the government for the money in Woods’s purse to
fund her jail account. Because the purse was not in the inven-
tory of seized property, law enforcement believed it must still
be in the Outlander.
No. 20-3297 5
On January 1, 2019, Detective Johnson broke the evidence
tape sealing the Outlander and entered the vehicle through
the front passenger side door to retrieve Woods’s purse. Re-
alizing that the purse was in the back seat, he reached over the
front seat and inadvertently bumped into the sunglasses
holder on the ceiling. The holder dislodged and revealed a
hidden compartment. As he attempted to reinsert the holder,
Detective Johnson immediately recognized a Glock handgun
stashed in the compartment. He left the Outlander and con-
tacted a federal prosecutor, who advised Detective Johnson to
get a search warrant, which FBI Agent Boxwell obtained. Law
enforcement officers searched the vehicle and found a knit
cap and Glock handgun bearing Edwards’s fingerprints.
II. Procedural Background
On March 25, 2019, law enforcement finally apprehended
Edwards in Chicago, Illinois. The grand jury subsequently re-
turned a superseding indictment including additional
charges.
A. Motions to Suppress
Edwards filed several suppression motions challenging
the evidence linking him to the O’Reilly Auto Parts robbery.
First, Edwards sought to suppress evidence resulting from the
GPS tracking device. Edwards argued Detective Schultz’s af-
fidavit violated Franks v. Delaware, 438 U.S. 154 (1978), and did
not support probable cause. Second, Edwards moved to sup-
press Woods’s photo identification of him for violating his
due process rights. Third, Edwards sought to suppress the
Glock recovered from the Outlander, claiming Detective
Johnson violated his Fourth Amendment rights when he en-
tered the vehicle without a warrant.
6 No. 20-3297
The magistrate judge held a combined Franks and eviden-
tiary hearing. During the hearing, the magistrate judge re-
viewed the security camera footage and heard testimony from
Detective Schultz, Detective Johnson, and Woods. The magis-
trate judge then issued a thorough report and recommenda-
tion, concluding that Detective Schultz did not misrepresent
the security camera footage or intend to mislead the issuing
judge by omitting portions of Edwards’s criminal history.
Recognizing Detective Johnson’s actions may have influenced
Woods’s photo identification, the magistrate judge found the
photo identification reliable after considering the Biggers fac-
tors. See Neil v. Biggers, 409 U.S. 188 (1972). Additionally, the
magistrate judge credited Detective Johnson’s testimony re-
garding how he discovered the hidden compartment in the
Outlander and concluded the entry did not implicate the
Fourth Amendment.
Edwards objected to the magistrate judge’s recommenda-
tion. On January 21, 2020, the district court entered its opinion
and order adopting the report and recommendation, and
overruled Edwards’s objections. The district court’s order
questioned Detective Johnson’s credibility, suggesting the
magistrate judge found Detective Johnson had lied at the evi-
dentiary hearing. The next day, the government moved to re-
consider the findings, arguing that the magistrate judge did
not find that Detective Johnson lied. Two days later, without
waiting for Edwards to file a response, the district court
granted the motion and issued a revised opinion and order
adopting the report and recommendation. Three days later,
Edwards filed his own motion to reconsider, which the dis-
trict court denied.
No. 20-3297 7
B. Alibi Witness Report
Before trial, Edwards designated Ms. Connie Burrell as an
alibi witness. Her story, however, shifted multiple times.
Shortly after the robbery, Burrell told Dane County Sheriff’s
Department officers that she had not seen Edwards in a few
weeks. Almost a year later, in September 2019, Burrell told
Agent Boxwell the alibi story about recording music with Ed-
wards during the time of the robbery, and emailed time-
stamped music files to prove it. But in early 2020, the alibi fell
apart.
On January 16, 2020, law enforcement executed a warrant
to search Burrell’s apartment. During the search, Burrell re-
canted the alibi and claimed she visited Edwards in jail and
he instructed her to “tell them I was with you.” On January
17, 2020, Burrell told Agent Boxwell that Edwards threatened
her if she would not provide an alibi. Then, on January 18,
2020, she told Agent Boxwell she overheard Edwards on the
phone planning the robbery and he came directly to her apart-
ment after crashing the Outlander. On January 19, 2020, Bur-
rell told Agent Boxwell she lied—she never heard Edwards
plan a robbery over the phone and he did not instruct her dur-
ing the jailhouse visit to “tell them I was with you.” Then, on
February 6, 2020, Burrell told Agent Boxwell she lied on Jan-
uary 19, she manipulated the dates on the music files, Ed-
wards instructed her to say he was with her that night, but she
did not overhear Edwards plan a robbery.
Agent Boxwell documented each of Burrell’s statements in
separate reports. Before trial, the government provided the re-
ports for multiple statements, but not the report containing
her January 19 statement. Edwards chose not to call Burrell as
an alibi witness. Edwards first learned of the existence—but
8 No. 20-3297
not details—of the January 19 statement during a pre-trial
hearing. Edwards never followed up with Burrell regarding
this statement and did not receive a copy of the report until
after trial.
C. Juror No. 11
Before trial, the government asked to exclude two case
agents, Agent Boxwell and Detective Keith of the Dane
County Sheriff’s Office, from witness sequestration pursuant
to Federal Rule of Evidence 615. Given the multi-jurisdic-
tional nature of this case, the district court granted the motion
in part, choosing to sequester Detective Keith until she com-
pleted her testimony. Detective Keith testified at trial then sat
in the gallery while Detective Johnson testified.
Shortly thereafter, Juror No. 11 informed the district court
that he believed Detective Keith coached Detective Johnson’s
testimony by shaking her head and making animated facial
gestures. Edwards moved for a mistrial and the district court
held an evidentiary hearing outside the jury’s presence.
Although the district court was critical of Detective Keith’s
actions and admonished her for exhibiting unprofessional be-
havior, the court denied the motion. The district court ruled
that Detective Johnson credibly testified he was not influ-
enced by Detective Keith’s behavior, there was not significant
evidentiary overlap between the testimonies, and Detective
Johnson’s testimony was consistent with other evidence pre-
sented at trial.
After hearing from Juror No. 11, the district court dis-
missed him for improper bias. It explained, “the jury is spe-
cial. I have to give both sides a jury that is going to decide the
No. 20-3297 9
case based on the evidence, and if I harbor some misgivings
about a juror, I have to let that juror go.”
D. Post-Trial Motions and Appeal
The jury convicted Edwards on all counts. He subse-
quently moved for a new trial, arguing the government’s fail-
ure to turn over the January 19, 2020, report of Burrell’s state-
ment violated Brady v. Maryland, 373 U.S. 83 (1963). Edwards
claimed he would have altered his trial strategy and used Bur-
rell as an alibi witness if the government had provided him
with the report in a timely manner. The district court denied
Edwards’s motion, finding no Brady violation. The district
court thereafter sentenced Edwards to a combined total 180-
month term of imprisonment, followed by a three-year term
of supervised release. Edwards filed a timely appeal.
III. Discussion
On appeal, Edwards challenges the district court’s rulings
on the motions to suppress, its ruling exempting Detective
Keith from sequestration after her trial testimony, its rulings
regarding Juror No. 11, and its ruling on the Brady challenge.
We consider, and reject, each argument in turn.
A. The GPS Tracking Warrant
Edwards argues that the district court erred when it de-
nied his motion to suppress evidence obtained through the
GPS tracking device on the Outlander. He contends that the
warrant is unconstitutional because Detective Schultz’s affi-
davit violated Franks v. Delaware and failed to establish prob-
able cause. Edwards does not argue that the affidavit, absent
Franks relief, would be facially insufficient to support proba-
ble cause.
10 No. 20-3297
Placing a GPS tracking device on a vehicle is a Fourth
Amendment search, requiring law enforcement to show prob-
able cause and obtain a warrant beforehand. See United States
v. Jones, 565 U.S. 400, 404 (2012). Where the affidavit is the only
evidence supporting probable cause, the issuing court focuses
“solely on the strength of the affidavit.” United States v. Peck,
317 F.3d 754, 755–56 (7th Cir. 2003). Under Franks, the district
court must suppress evidence seized during a search “when
the defendant shows by a preponderance of the evidence that
(1) the affidavit in support of the warrant contains false state-
ments or misleading omissions, (2) the false statements or
omissions were made deliberately or with reckless disregard
for the truth, and (3) probable cause would not have existed
without the false statements and/or omissions.” United States
v. Williams, 718 F.3d 644, 647–48 (7th Cir. 2013) (citing Franks,
438 U.S. at 155–56).
“An affiant acts with reckless disregard for the truth when
he ‘in fact entertain[s] serious doubts as to the truth of his al-
legations.’” Id. at 650 (quoting United States v. Lowe, 516 F.3d
580, 584 (7th Cir. 2008)). The inquiry is subjective, focusing on
the affiant’s state of mind. Id. Reckless disregard is greater
than negligence. Id. “[O]ur task is to determine whether,
based on the totality of the circumstances, it was reasonable
for the [lower] court to conclude that law enforcement did not
doubt the truth of the affidavit.” Id. A Franks violation predi-
cated on an omission requires that it was done “deliberately
or recklessly to mislead the issuing [judge].” Id. (citing United
States v. McMurtrey, 704 F.3d 502, 513 (7th Cir. 2013)).
We review factual determinations, including whether the
officer made statements deliberately or with reckless disre-
gard for the truth, for clear error. Id. at 649 (citing United States
No. 20-3297 11
v. Spears, 673 F.3d 598, 604 (7th Cir. 2012)). “A factual finding
is clearly erroneous only if, after considering all of the evi-
dence, we cannot avoid or ignore a definite and firm convic-
tion that a mistake has been made.” United States v. Hammond,
996 F.3d 374, 383 (7th Cir. 2021) (quoting United States v. Thur-
man, 889 F.3d 356, 363 (7th Cir. 2018)).
We see no error in the district court’s denial of Edwards’s
motion to suppress the evidence obtained from the GPS track-
ing device because Edwards has failed to identify a false state-
ment or misleading omission in the supporting affidavit. The
Neil’s Liquor security camera footage supports the descrip-
tion in Detective Schultz’s affidavit and corroborates his rep-
resentations to the issuing judge. Our own review of the tape
supports the district court’s conclusions, and its findings are
not clearly erroneous. Additionally, the affiant’s underreport-
ing of Edwards’s criminal history does not render the warrant
constitutionally deficient. If anything, the underreporting
benefited Edwards.
Furthermore, even if the explanation of Edwards’s crimi-
nal history was misleading, Edwards fails to establish that De-
tective Schultz deliberately or recklessly attempted to mislead
the issuing judge. The magistrate judge credited Detective
Schultz’s testimony that he had no intention to mislead. We
defer to the magistrate judge who “had the opportunity to lis-
ten to testimony and observe the demeanor of a witness at the
suppression hearing.” Thurman, 889 F.3d at 366 (quoting
United States v. Biggs, 491 F.3d 616, 621 (7th Cir. 2007)). Be-
cause Edwards cannot identify any evidence that the magis-
trate judge’s credibility finding was clearly erroneous, the dis-
trict court did not err when it denied the motion to suppress
evidence from the GPS tracking device.
12 No. 20-3297
B. Woods’s Photo Identification
Edwards next argues that the district court erred when it
denied his motion to suppress Woods’s photo identification.
A photo identification procedure violates a defendant’s due
process rights when (1) it was “impermissibly suggestive”
and (2) “under all the circumstances, that suggestive proce-
dure gave rise to a substantial likelihood of irreparable misi-
dentification.” United States v. Gonzalez, 863 F.3d 576, 584 (7th
Cir. 2017) (quoting Manson v. Brathwaite, 432 U.S. 98, 107
(1977)). We review de novo the lower court’s decision to deny
a defendant’s motion to suppress a photo identification, “with
due deference to the court’s findings of historical fact.” Id. (cit-
ing United States v. Harris, 281 F.3d 667, 669–70 (7th Cir. 2002)).
Presenting a witness with only one suspect for an identifi-
cation is inherently suggestive but may be permissible in cer-
tain circumstances. Id. at 584–85 (showing state identification
photos within minutes of robbery would be suggestive lack-
ing exigent circumstances); United States v. Brown, 471 F.3d
802, 804 (7th Cir. 2006) (reviewing Supreme Court precedent
and scholarship regarding single-suspect presentations and
attempts to mitigate suggestibility); but see United States v.
Vines, 9 F.4th 500, 506–07 (7th Cir. 2021) (holding that it was
not suggestive to show a Facebook profile picture after wit-
ness volunteered the suspect had a Facebook page). Because
the government does not dispute the finding that the photo
procedure was impermissibly suggestive, we proceed straight
to the second prong.
An impermissibly suggestive photo identification may
nonetheless survive a suppression motion where the totality
of the circumstances demonstrates the reliability of the iden-
tification. See Gonzalez, 863 F.3d at 585–86 (citing Perry v. New
No. 20-3297 13
Hampshire, 565 U.S. 228, 232 (2012)). In assessing reliability,
we consider the Biggers factors: (1) the witness’s opportunity
to view the defendant during the crime; (2) the witness’s de-
gree of attention paid to the defendant; (3) the accuracy of any
prior descriptions of the defendant; (4) the level of the wit-
ness’s certainty at the time of the identification; and (5) the
time that has passed between the crime and the identification.
Biggers, 409 U.S. at 199–200; Gonzalez, 863 F.3d at 586.
All five Biggers factors support the reliability of the photo
identification and indicate the process did not give rise to a
substantial likelihood of irreparable misidentification. First,
Woods knew Edwards and spent hours with him that night.
Second, Woods paid significant attention to Edwards over
this period as he drove her, pulled a gun on her, committed a
robbery with her, and fled from the police with her in a high-
speed car chase. Third, Woods correctly observed that, while
Edwards had hair in the booking photo Detective Johnson
showed her, he was currently bald. Fourth, Woods immedi-
ately recognized “Moe” in the booking photo and has not wa-
vered in her identification. Fifth, Woods identified Edwards
within hours of the robbery.
Additionally, Edwards argues that Woods’s identification
was unreliable because she was intoxicated and under great
stress. The magistrate judge heard live testimony from Woods
and Detective Johnson, and was in the best position to evalu-
ate Woods’s credibility and how Detective Johnson’s actions
may have impacted her photo identification. See Thurman, 889
F.3d at 366. Edwards fails to present evidence sufficient to
challenge these findings. The district court did not err when
it denied Edwards’s motion to suppress Woods’s photo iden-
tification.
14 No. 20-3297
C. Detective Johnson’s Second Entry into the Outlander
Edwards next argues the district court erred when it de-
nied his motion to suppress evidence obtained from Detective
Johnson’s January 1, 2019, warrantless entry into the im-
pounded Outlander. When reviewing the district court’s de-
nial of a motion to suppress, we review findings of fact for
clear error and legal conclusions de novo. See United States v.
Cole, 21 F.4th 421, 427 (7th Cir. 2021) (en banc).
Edwards considers Detective Johnson’s account of the Jan-
uary 2019 entry incredible, but points to nothing beyond
those plausibility concerns rejected below. Here, again, the
magistrate judge enjoyed the benefit of observing Detective
Johnson’s live testimony and evaluating his credibility. Noth-
ing on the record leaves us with the definite and firm convic-
tion the lower court erred in crediting Detective Johnson’s
version of events. See Hammond, 996 F.3d at 383. We decline to
disturb the district court’s factual findings and accept Detec-
tive Johnson’s account: Detective Johnson entered the Out-
lander for the sole purpose of retrieving Woods’s purse. Once
in the Outlander, he did not stray beyond this objective. In
reaching for the purse, Detective Johnson inadvertently dis-
lodged the sunglasses holder and revealed a hidden compart-
ment concealing what he immediately recognized to be a
Glock handgun.
Edwards argues that law enforcement needed to obtain a
new warrant before searching the impounded Outlander a
second time. See United States v. Keszthelyi, 308 F.3d 557, 568
(6th Cir. 2002) (articulating the “reasonable continuation rule”
that the government needs a new warrant if the second entry
is not a reasonable continuation of the first); Bills v. Aseltine,
958 F.2d 697, 703 (6th Cir. 1992) (differentiating between entry
No. 20-3297 15
for the purposes outlined in the warrant and entry for a dif-
ferent purpose). Edwards suggests that after the officers re-
turned the initial search warrant, he had a legitimate expecta-
tion of privacy against further searches without a new war-
rant or identifiable exception to the warrant requirement. The
record indicates the government assumed the same—a pros-
ecutor instructed Detective Johnson to seek a warrant before
recovering new evidence. Today, we need not consider when
an additional warrant was necessary because Edwards had no
privacy interest in the Outlander after he abandoned the ve-
hicle.
The Fourth Amendment provides: “The right of the peo-
ple to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be vio-
lated[.]” U.S. Const. Amend. IV. This protects a defendant
from unreasonable searches in places where the defendant
has a legitimate expectation of privacy. See Hammond, 996 F.3d
at 384 (citing United States v. Sawyer, 929 F.3d 497, 499 (7th Cir.
2019). The Amendment does not apply to abandoned prop-
erty. United States v. Pitts, 322 F.3d 449, 455–56 (7th Cir. 2003)
(citing Abel v. United States, 362 U.S. 217, 241 (1960)). “[N]o
person can have a reasonable expectation of privacy in an
item that he has abandoned.” Id. at 456 (quoting United States
v. Basinski, 226 F.3d 829, 836 (7th Cir. 2000)).
Abandonment turns upon an objective test of “the external
manifestations of the defendant’s intent as judged by a rea-
sonable person possessing the same knowledge available to
the government agents involved in the search.” Id. (citing Ba-
sinski, 226 F.3d at 836). We have stated on multiple occasions
that a driver relinquishes any privacy interest when he flees a
vehicle. See United States v. Vasquez, 635 F.3d 889, 894 (7th Cir.
16 No. 20-3297
2011) (questioning how a defendant “could argue with a
straight face that he maintained an expectation of privacy in
[the vehicle] after he ditched it and bolted off on the run”);
United States v. Pittman, 411 F.3d 813, 817 (7th Cir. 2005) (not-
ing that when a driver flees from police, that “is pretty good
evidence that he’s abandoned the car—that he doesn’t want
to be associated with it and therefore isn’t going to reclaim
it”).
After the government declined to challenge Edwards’s
privacy interest, the magistrate judge sua sponte raised aban-
donment in its report and recommendation. The magistrate
judge explained that, but for the government’s concession, it
would have found Edwards abandoned the Outlander. We
agree. Edwards ditched the Outlander (which was not regis-
tered in his name) after a high-speed car chase the night of the
O’Reilly Auto Parts robbery when he fled on foot, and he was
a fugitive at the time Detective Johnson entered the vehicle. A
reasonable person would conclude that Edwards abandoned
the vehicle. See Pitts, 322 F.3d at 455–56.
Although both parties assumed Edwards had a Fourth
Amendment right to privacy in the Outlander, we are not
bound by the parties’ view. Likewise, we may affirm the dis-
trict court’s decision on “‘any ground supported by the rec-
ord.’” United States v. Harden, 893 F.3d 434, 451 (7th Cir. 2018)
(quoting Boyd v. Ill. State Police, 384 F.3d 888, 897 (7th Cir.
2004)). The government’s failure to raise abandonment for-
feits that issue on appeal. Henry v. Hulett, 969 F.3d 769, 786
(7th Cir. 2020) (en banc) (citing United States v. Olano, 507 U.S.
725, 731-35 (1993)); see United States v. Rahman, 805 F.3d 822,
831 (7th Cir. 2015) (determining forfeiture when “the argu-
ment was available to [the defendant] at the time of the
No. 20-3297 17
search”); United States v. Combs, 657 F.3d 565, 571 (7th Cir.
2011) (explaining that “[t]he government can forego a de-
fense—whether by design or neglect—but we are not obli-
gated to accept the government’s waiver”). But we may “base
our decision on a forfeited ground” when the record presents
“an ‘exceptional case.’” See Hill v. Werlinger, 695 F.3d 644, 647
(7th Cir. 2012) (quoting Wood v. Milyard, 566 U.S. 463, 473
(2012)).
As our sister circuit recently articulated, “courts do have
the ability to ‘resurrect’ forfeited issues sua sponte in ‘extraor-
dinary circumstances.’” United States v. Campbell, 26 F.4th 860,
872 (11th Cir. 2022) (en banc) (quoting Wood, 566 U.S. at 471
n.5). “The degree to which we adhere to the prudential prac-
tice of forfeiture and the conditions under which we will ex-
cuse it are up to us as an appellate court.” Id. at 873 (citation
omitted). The court considered the forfeited issue because it
had “all the findings of fact necessary … and that purely legal
conclusion jumps off the page.” Id. at 877. We are in similar
territory. Under any standard of review, the record shows Ed-
wards abandoned the Outlander. It also qualifies as an excep-
tional case to forgive the forfeiture.
In Wood v. Milyard, the Supreme Court stated that a court
may consider a forfeited ground “founded on concerns
broader than those of the parties.” 566 U.S. at 471 (citing Gran-
berry v. Greer, 481 U.S. 129, 133–35 (1987)). A case may be ex-
ceptional once “third-party costs are taken into account, [and]
reversal may be an excessive sanction for the government’s
[forfeiture].” United States v. Ford, 683 F.3d 761, 769 (7th Cir.
2012) (quoting United States v. Giovannetti, 928 F.2d 225, 227
(7th Cir. 1991). “[T]he facts of individual cases” inform when
we should use our discretion to decide a case on the forfeited
18 No. 20-3297
ground, Singleton v. Wulff, 428 U.S. 106, 121 (1976), including
when the facts indicate “broader interests are at stake,” Bour-
geois v. Watson, 977 F.3d 620, 632 (7th Cir. 2020).
Based on the facts of this case, it qualifies as exceptional.
In failing to challenge Edwards’s privacy interest in the Out-
lander, the government presents alternate reasons for affir-
mance that would require us to examine unresolved nuances
to the Fourth Amendment constitutional doctrine. Yet, the
record provides a clear disposition under our established con-
stitutional precedent. As such, we exercise our discretion to
forgive the forfeiture and avoid the needless exploration of
unchartered constitutional matters which could bring unin-
tended consequences for future litigants.
Presented with the magistrate judge’s well-reasoned re-
port, we agree with its recommendation regarding abandon-
ment. Law enforcement was wise to seek a search warrant for
the Outlander in the first instance. It is best practice to rely on
a warrant instead of gamble on a court’s evidentiary determi-
nation. But the record here shows Edwards had no expecta-
tion of privacy in the abandoned Outlander. Handed a pecu-
liar set of facts, the district court did not err when it denied
Edwards’s motion to suppress, albeit on different grounds
than we affirm on today.
D. The Government’s Motion to Reconsider
Additionally, Edwards claims the district court erred
when it granted the government’s motion to reconsider its
opinion and order adopting the magistrate judge’s report and
recommendation. Edwards argues because the government
never objected to the report and recommendation, the govern-
ment waived the issue. We review the district court’s ruling
No. 20-3297 19
on a motion to reconsider for abuse of discretion. Jaburek v.
Foxx, 813 F.3d 626, 630 (7th Cir. 2016).
A party may object to a magistrate judge’s report and rec-
ommendation “[w]ithin 14 days after being served with a
copy of the recommended disposition, or at some other time
the court sets.” Fed. R. Crim. P. 59(b)(2). Failure to object
“waives a party’s right to review.” Id. Waiver is not jurisdic-
tional, however, and a district court may review a recommen-
dation on its own initiative. United States v. Street, 917 F.3d
586, 597–98 (7th Cir. 2019). Furthermore, “we have recognized
exceptions when enforcing [the deadline] would ‘defeat the
ends of justice.’” Id. at 597–98 (quoting Video Views, Inc. v. Stu-
dio 21, Ltd., 797 F.2d 538, 540 (7th Cir. 1986)).
Waiver does not apply here. The magistrate judge entered
a well-reasoned and unambiguous report and recommenda-
tion. Nowhere in the report did the magistrate judge include
that Detective Johnson lied or gave false testimony. Instead,
the district court erroneously concluded that the magistrate
judge had made such a finding, and the government objected
to the district court’s error. The district court acted well within
its discretion in correcting its mistake.
E. Trial & Juror No. 11
Edwards next claims the district court made numerous er-
rors at trial: failing to sequester Detective Keith from the court
room, denying Edwards’s motion for a mistrial, and dismiss-
ing Juror No. 11. We review these rulings for abuse of discre-
tion. See United States v. Olofson, 563 F.3d 652, 660 (7th Cir.
2009) (witness sequestration exemption); United States v. Lowe,
2 F.4th 652, 658 (7th Cir. 2021) (mistrial); United States v. Lore-
fice, 192 F.3d 647, 654 (7th Cir. 1999) (juror dismissal). We
20 No. 20-3297
review the district court’s factual findings in connection with
a mistrial motion for clear error. See United States v. Mannie,
509 F.3d 851, 856 (7th Cir. 2007) (citing Shakman v. City of Chi-
cago, 426 F.3d 925, 932 (7th Cir. 2005)).
1. Detective Keith
Federal Rule of Evidence 615 directs a court to exclude
witnesses from the courtroom during trial so they do not in-
fluence, and are not influenced by, the testimony of other wit-
nesses. Rule 615 exempts several categories of witness from
exclusion, including a government’s investigative case agent.
See Fed. R. Evid. 615(b) & (c); United States v. Berry, 133 F.3d
1020, 1024 (7th Cir. 1998).
The district court did not abuse its discretion by permit-
ting both Agent Boxwell and Detective Keith (after her testi-
mony) in the courtroom. Agent Boxwell was the lead investi-
gator for the case and squarely fell under the Rule 615(b) case
agent exemption. Similarly, Detective Keith’s presence was
essential to the government’s case pursuant to Rule 615(c).
Detective Keith’s role was separate from Agent Boxwell’s, the
case was multi-jurisdictional, Detective Keith worked for a
different law enforcement body, and she had independent
knowledge of other aspects of the case. Moreover, the district
court sequestered Detective Keith until she had completed
her testimony, thereby eliminating the risk that the testimony
of other trial witnesses would impact hers.
2. Motion for Mistrial
Edwards argues that the district court erred by denying
his motion for a mistrial after Juror No. 11 raised concerns of
potential witness coaching. “[A] trial judge is in the best posi-
tion to weigh the circumstances peculiar to each trial.” Lowe,
No. 20-3297 21
2 F.4th at 658 (quoting United States v. Wrensford, 866 F.3d 76,
89 (3d Cir. 2017)). In considering the context of the district
court’s decision, we must “determine whether the defendant
was deprived of a fair trial.” Mannie, 509 F.3d at 856 (citing
United States v. Clarke, 227 F.3d 874, 881 (7th Cir. 2000)).
The district court did not abuse its discretion. Though Ed-
wards disagrees with the result, he does not explain how the
district court’s factual findings were clearly erroneous. In-
stead, he asks us to reweigh the evidence. The record indicates
that the district court took great care to ensure that it did not
allow a tainted trial to move forward. It took testimony from
Juror No. 11 and the detectives, allowed the parties to ques-
tion the detectives, and heard arguments from both sides. The
district court carefully considered the evidence and the cir-
cumstances, recognizing it was in the best position to weigh
the situation. It then made clear factual findings that Keith did
not coach Johnson, Johnson credibly testified that Keith’s be-
havior did not impact his testimony, and there was no preju-
dice to warrant a mistrial. It also admonished Detective Keith
for her conduct. The district court could not declare a mistrial
for witness coaching when no witness coaching took place.
3. Excusing Juror No. 11
Edwards next argues that the district court abused its dis-
cretion when it excused Juror No. 11. A district court may re-
move and replace sitting jurors “who are unable to perform
or who are disqualified from performing their duties.” Fed. R.
Crim. P. 24(c)(1). The district court is in the best position to
consider a juror’s potential bias and weigh that against the ju-
ror’s claims that he can still be fair and impartial. See Lorefice,
192 F.3d at 654. A district court abuses its discretion when “no
legitimate basis for the court’s decision can be found in the
22 No. 20-3297
record, and the appellant shows that the juror’s dismissal
prejudiced his case.” United States v. Pineda, 743 F.3d 213, 217
(7th Cir. 2014) (citing United States v. Vega, 72 F.3d 507, 512 (7th
Cir. 1995)).
Edwards challenges the district court’s basis for excusing
Juror No. 11, claiming that a juror is entitled to consider what
takes place in the courtroom. He suggests that Detective
Keith’s actions in the gallery were fair game for the jury, and
the district court abused its discretion when it excused a juror
who was merely weighing witness credibility.
The district court took a methodical approach to protect
the sanctity of the jury and the fairness of Edwards’s trial. It
found, after careful consideration, that Detective Keith’s ac-
tions did not impact Detective Johnson’s testimony. After
questioning Juror No. 11 twice, however, the district court ob-
served that Juror No. 11 believed Detective Keith may have
coached Detective Johnson’s testimony. Indeed, Juror No. 11
felt so strongly about the behavior that he voiced his concerns.
The district court recognized that Juror No. 11 initially stated
he would consider Detective Keith’s actions when weighing
Detective Johnson’s credibility. Despite Juror No. 11’s agree-
ment to follow its instructions, the district court believed the
cloud of bias remained. Based upon its evaluation of Juror No.
11’s demeanor and credibility, the district court concluded
that the juror’s continued service on the jury risked tainting
the trial and deliberations. The district court’s detailed find-
ing supports its conclusion. It did not abuse its discretion in
excusing Juror No. 11.
No. 20-3297 23
F. Motion for a New Trial
Next, Edwards appeals the district court’s decision to
deny his motion for new trial pursuant to Federal Rule of
Civil Procedure 33 and Brady v. Maryland. We review the dis-
trict court’s decision to grant or deny a motion for new trial
for abuse of discretion, including when the defendant alleges
there was a Brady violation. United States v. Ballard, 885 F.3d
500, 504 (7th Cir. 2018). Because “Brady violations often impli-
cate both issues of fact and law; we review the district court’s
factual findings for clear error, and legal conclusions de
novo.” Ballard, 885 F.3d at 504 (citing United States v. Griffin,
652 F.3d 793, 797 (7th Cir. 2011)).
“To succeed on a Brady claim, a defendant ‘bears the bur-
den of proving that the evidence is (1) favorable, (2) sup-
pressed, and (3) material to the defense.” United States v. Wal-
ter, 870 F.3d 622, 629 (7th Cir. 2017) (quoting United States v.
Walker, 746 F.3d 300, 306 (7th Cir. 2014)). Edwards has failed
to satisfy these elements.
1. Favorable Evidence
Evidence is “favorable” if it is exculpatory or impeaching.
Ballard, 885 F.3d at 504 (citing Turner v. United States, 137 S. Ct.
1885, 1893 (2017)). The district court noted that Edwards knew
of the existence, but not the details, of the January 19 state-
ment. Edwards claims the details in the report are favorable
because they reflect Burrell denouncing her prior statements,
which were detrimental to Edwards’s case. We cannot see
how the January 19 report is favorable, particularly when Bur-
rell called Agent Boxwell again on February 6, 2020, to contra-
dict her January 19 statement. If anything, it further under-
mines Burrell’s credibility.
24 No. 20-3297
2. Suppression
Evidence is suppressed when the government “fail[s] to
disclose evidence not otherwise available to a reasonably dil-
igent defendant.” Bryant v. Brown, 873 F.3d 988, 998 (7th Cir.
2017) (quoting Jardine v. Dittmann, 658 F.3d 772, 776 (7th Cir.
2011)). Evidence is not suppressed when a defendant is aware
a witness recanted a prior statement and the defendant has
access to question the witness further. See United States v. Lock-
hart, 956 F.2d 1418 (7th Cir. 1992). Edwards claims that the
government suppressed the January 19, 2020, report’s con-
tents. Even if he had asked her about the statement, Edwards
contends, only the report could verify whether Burrell’s rec-
ollection of her statement was reliable.
We agree with Edwards that, as a practical matter, the gov-
ernment should have turned over the report. But the nature
of this report falls outside the scope of Brady. Though the gov-
ernment did not produce the report, anything Edwards
would have gained from it was available to him through rea-
sonable diligence because Burrell was his witness. See Lock-
hart, 956 F.2d at 1426 (noting that the government is not re-
quired to “transcribe the recantation of a witness available to
the defendant”). Edwards points to Boss v. Pierce, 263 F.3d 734(7th Cir. 2001), arguing that Burrell could not have relayed the
exact contents contained in the report. Boss does not apply
here. In Boss, we explained that reasonable diligence does not
extend to everything a defense witness might have told the
government, such as additional information about the crime
unrelated to his alibi testimony. Boss, 263 F.3d at 740–42. Con-
versely, Burrell’s statement goes directly to her role as an alibi
witness. When Edwards’s counsel learned about the January
19, 2020, statement, reasonable diligence required counsel to
No. 20-3297 25
follow up with Burrell to determine what she did or did not
say. If Burrell recanted her recantation on January 19, she
could easily have told Edwards.
3. Materiality
Evidence is “material” when “there is a ‘reasonable prob-
ability’ that the result would have been different had the sup-
pressed evidence been put before the jury.” Goudy v. Cum-
mings (Goudy II), 922 F.3d 834, 842 (7th Cir. 2019) (citing Kyles
v. Whitley, 514 U.S. 419, 422 (1995)). This standard “is less rig-
orous than a preponderance of the evidence … [the defend-
ant] must show only that ‘the cumulative effect of all of the
suppressed information is to undermine confidence in the
verdict.’” Id. (quoting Goudy v. Basinger (Goudy I), 604 F.3d 394,
399 (7th Cir. 2010)). Cumulative effect is considered “in the
context of the entire record.” Id. (quoting Beaman v. Freesmeyer,
776 F.3d 500, 507 (7th Cir. 2015)). Edwards argues the report
is material because he could have used it to rehabilitate Bur-
rell’s alibi testimony had she taken the stand.
Edwards fails to show how the contents of the January 19,
2020 report could possibly rehabilitate Burrell’s credibility
had she testified, let alone how it would present a reasonable
probability that the outcome of his trial would have been dif-
ferent. As the district court correctly observed, the evidence
against Edwards was strong. See United States v. Asher, 178
F.3d 486 (7th Cir. 1999) (affirming when the suppressed FBI
interview summaries would not have undermined confidence
in the jury’s verdict given the weight of additional evidence).
Woods, Edwards’s codefendant, testified against him, the two
used his Outlander during the O’Reilly Auto Parts robbery,
the surveillance video captured him, and his DNA was on the
gun Detective Johnson found in the Outlander. Moreover,
26 No. 20-3297
Burrell’s account of the events was a moving target. She told
multiple versions of the events. The report would not have
created a reasonable probability of a different outcome in Ed-
wards’s case.
G. Cumulative Error
Edwards concludes by asking us to reverse on cumulative
error. “Cumulative errors, while individually harmless, when
taken together can prejudice a defendant as much as a single
reversible error and violate a defendant’s right to due process
of law.” United States v Marchan, 935 F.3d 540, 549 (7th Cir.
2019) (quoting United States v. Allen, 269 F.3d 842, 847 (7th Cir.
2001)). “To establish cumulative error a defendant must show
that ‘(1) at least two errors were committed in the course of
the trial; (2) considered together along with the entire record,
the multiple errors so infected the jury’s deliberation that they
denied the petitioner a fundamentally fair trial.’” Id. (quoting
Allen, 269 F.3d at 847). As explained above, Edwards fails to
establish a single error, let alone two.
IV. Conclusion
For these reasons, we affirm.