United States v. White

In the

United States Court of Appeals

For the Seventh Circuit

No. 10-1764

U NITED S TATES OF A MERICA,

Plaintiff-Appellee,

v.

T REMAINE W HITE,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Illinois, Western Division.

No. 08 CR 50058—Frederick J. Kapala, Judge.

A RGUED D ECEMBER 2, 2010—D ECIDED A PRIL 6, 2011

Before E ASTERBROOK, Chief Judge, and M ANION and

W ILLIAMS, Circuit Judges.

M ANION, Circuit Judge. Tremaine White was convicted

of bank robbery and sentenced to 137 months’ imprison-

ment. White appeals, challenging the district court’s

admission of testimony from his sister and ex-girlfriend

that he is the individual in a still photograph taken

from the surveillance video of the bank robbery. He

also challenges the district court’s admission of a hand-

2 No. 10-1764

written demand note recovered from his rental car, and

the district court’s reliance on that note to enhance his

sentence for having made a threat of death during the

robbery. We affirm.

I.

On December 26, 2008, an individual, later identified

as Tremaine White, entered a US Bank branch in Rock-

ford, Illinois and approached the sole bank teller on

duty. After asking the teller some questions, White slid

a note across the counter demanding all of the money

in her drawer and instructing her not to include any

dye packs. The note also stated that White had a

weapon, although the teller does not remember the

exact wording of the note. When White slid the note

across the counter, he placed his hand inside the waist-

band of his pants, as if he were grabbing a gun. The

teller followed White’s directions and gave him all of

the money in the drawer, totaling $18,582.

After White left the bank, the teller activated the

bank alarm. Police responded immediately. The teller

explained in detail how the robbery had occurred and

provided the officers with a description of the robber—6'-

6'2, black male, with small eyes, and approximately

215 pounds. The teller also described the demand note,

telling the police that it was written on lined paper, with

a frayed edge as if torn from a spiral notebook; she

also told the officers what, to the best of her recollec-

tion, it said.

No. 10-1764 3

Meanwhile, White took the robbery proceeds back

to the house he shared with his uncle, William Cole

(“Uncle Bill”), and his mother. His sister, Shenay White,

was also at the house and saw White holding a bag con-

taining a large amount of money in wrappers that ap-

peared to have come from a bank. The next day White

gave Shenay a little over $3,000 to bond his girlfriend,

Kristina Saylor, out of jail—the apparent motive for the

crime. White then placed the rest of the money in a

plastic bag in his closet where Shenay later discovered

it. Shenay helped herself to about $1,200 and then

told Uncle Bill about the money, who also took some of

the money. When White discovered the loss, he con-

fronted Shenay and angrily accused her of stealing his

money. She returned the money, but White allowed her

to keep $400.

Shenay was either upset that White wouldn’t share

more of the robbery proceeds, or feared she would be

blamed for being in on the bank robbery since she had

used the money to bail out Saylor. Whatever the motiva-

tion, a few days after the robbery Shenay went to the

police and told them that she suspected her brother of

robbing the US Bank. Investigators showed Shenay a

still photograph from the bank surveillance video and

she identified White as the robber. They also showed

the still photograph to Saylor and she too identified

White as the individual in the photograph. Officers

then created a photo-array with White and several

other similar-looking individuals and showed it to the

teller. The teller immediately identified White as the

robber.

4 No. 10-1764

On December 29, 2008, after the teller identified White,

the police arrested him at his home. They searched

the house, but did not find the money. The officers

did, however, seize a coat and boots that the teller later

identified as similar to those worn by the robber. After

the police left, Shenay and Uncle Bill searched the house

for the money and found it hidden in the basement in

an electrical compartment of the washing machine.

There was still about $12,000 left, which they divided

between themselves before spending it on various items;

they were later charged with possessing bank robbery

proceeds. Police conducted a second search the next

day—too late to find the money—but they did find jeans

and a stocking cap which matched those worn by

the robber, as described by the teller and shown in the

surveillance video.

Police also searched White’s rental car, which police

had impounded at the time of his arrest, and recovered

a robbery demand note. It was written on a piece of

lined notebook paper with a frayed edge, matching

the description of the note the bank teller had given.

The officers also recovered a notebook from which the

demand note had apparently been torn. The note read:

I have a gun. Give me the money in the register. No

dye packs, no silent alarms, and no one will get hurt.

Do it quickly.

Before trial, police showed the note to the teller, but she

said that she did not think it looked like the note used

in the robbery.

Based on the above evidence, a grand jury indicted

White on one count of bank robbery in violation of 18

No. 10-1764 5

U.S.C. § 2113(a). White pleaded not guilty and pro-

ceeded to trial. After his arrest, but before trial, White

continued to speak with Saylor and during one of

those conversations he told Saylor to tell the police that

he did not commit the robbery and that he was not the

man in the surveillance photograph.

At trial, the above evidence was presented. Addi-

tionally, Shenay and Saylor (now an ex-girlfriend)

testified that the man shown in a still photograph

from the surveillance video was White. The teller also

testified, describing the robbery and the robber in

detail, and she again identified White as the robber. The

government also presented the recovered demand note,

but the teller could not say whether it was the one used

during the robbery. White, for his part, presented as his

theory of defense that he was not the robber—but that

it was Uncle Bill.

The jury apparently rejected White’s theory of the

case and convicted him of bank robbery. The district

court then sentenced him to 137 months’ imprisonment.

In calculating White’s guideline range, the district court

found that the note recovered from the rental car was

the note used during the bank robbery. And because

that note had stated that White had a gun, the

district court enhanced White’s guideline range under

§ 2B3.1(b)(2)(F) for having made a threat of death

during the robbery. White appeals.

6 No. 10-1764

II.

On appeal, White claims the district court erred in

admitting testimony from his sister and ex-girlfriend

that he is the individual shown in the still photograph

from the surveillance video taken during the bank rob-

bery. White also challenges the district court’s admission

of the handwritten demand note recovered from his rental

car. Finally, White challenges his sentence, arguing the

district court erred in relying on the demand note to

enhance his sentence for having made a threat of death

during the robbery. We consider each issue in turn.

A. Identification

As noted above, at White’s trial both his sister, Shenay,

and his ex-girlfriend, Saylor, testified that the man

shown in the still photograph from the surveillance tape

of the bank robbery was White. White did not object

to Shenay’s testimony but did object to Saylor’s, so the

standard of review is plain error and abuse of discretion

respectively. United States v. Towns, 913 F.2d 434, 445-

46 (7th Cir. 1990).

The identifications of White by Shenay and Saylor

from the still photograph are considered lay opinion

evidence and their admissibility is governed by Federal

Rule of Evidence 701. Under Rule 701, a lay witness’s

opinion is admissible if it is: “(a) rationally based on

the perception of the witness and (b) helpful to a clear

understanding of his testimony or the determination of

the fact in issue.” Fed. R. Evid. 701. Here, Shenay and

No. 10-1764 7

Saylor’s testimony met the requirements of Rule 701 and

was properly admitted. Both witnesses—one his sister,

the other his ex-girlfriend—were very familiar with

White, and thus their opinion was “rationally based” on

their perceptions. Additionally, their testimony satisfies

the second prong of Rule 701 because it helped deter-

mine a fact in issue, i.e., the identity of the bank robber.

In response, White argues that allowing a lay witness

to identify him as the culprit invades the province of

the jury. We have already rejected this argument in

United States v. Jackson, 688 F.2d 1121 (7th Cir. 1982). In

Jackson, the district court allowed a witness who had

met the defendant on only one occasion to offer lay

opinion testimony that he was the individual shown in

a surveillance video robbing a bank. Among other

things, the defendant argued that permitting such lay

opinion testimony usurped the jury’s function. We

rejected that argument, explaining: “The jury was free to

believe or disregard [the witness’s] testimony; the issue

of whether the defendant was the same person as the

bank robber was left to the jury for its ultimate deter-

mination.” Id. at 1126 Similarly, in this case the jury

was free to disregard Shenay and Saylor’s testimony

that the individual depicted in the still photo from the

surveillance video was White. See also United States v.

Towns, 913 F.2d 434 (7th Cir. 1990) (holding the

district court did not err in admitting lay opinion testi-

mony from the defendant’s ex-girlfriend that the de-

fendant was one of the robbers in a bank surveillance

photograph); United States v. Stormer, 938 F.2d 759, 762

(7th Cir. 1991) (holding the district court did not err in

8 No. 10-1764

admitting lay opinion testimony that defendant was the

individual depicted in a bank surveillance photograph).

White also argues that lay opinion evidence on the

identity of an individual shown in a surveillance photo-

graph is only permitted if the defendant’s appearance

had changed since the crime or if the accused had at-

tempted to disguise himself. While both circumstances

would justify the admission of lay opinion testimony,

Jackson, 688 F.2d at 1125, Towns, 913 F.2d at 445, Stormer,

938 F.2d at 762, neither is required. Rather, as we ex-

plained in Towns, “[g]enerally, a lay witness may testify

regarding the identity of a person depicted in a surveil-

lance photograph ‘if there is some basis for concluding

that the witness is more likely to correctly identify the

defendant from the photograph than is the jury.’ ” Towns,

913 F.2d at 445. This case presents just such a circum-

stance. While White did not wear a disguise, the view of

his appearance in the surveillance video and in still

shots was limited by his attire—he wore a bulky winter

coat closed up to his chin and a hat pulled down to his

eyebrows. The surveillance video was also not of the

best quality. In fact, at trial, White’s attorney claimed

that even if the jury watched “that video a hundred

times,” they would not “get a good enough look at the

person involved to determine who is the bank robber.”

He later added: “No reasonable human being can

make out in that photograph sufficient features to de-

termine who is depicted there.” Also, as noted above,

White’s theory of defense was that the man depicted in

the still photographs was really Uncle Bill, and White’s

attorney argued that the robber’s hat prevented the

No. 10-1764 9

jury from determining whether the man robbing the

bank had grey hair (like Uncle Bill), or black hair, like

White. Finally, while cross-examining the teller, White’s

attorney argued that because White and his uncle were

relatives, the teller could easily have mistaken White

for his uncle. Because both Shenay and Saylor knew

White and Uncle Bill, they were able to provide the

jury with helpful insight regarding the true identity of

the man shown in the surveillance video and counter

White’s claim that the still photograph really de-

picted Uncle Bill. In fact, in questioning Saylor after

she identified White as the individual shown in the

photograph, the government asked: “And you made

that identification having seen both Tremaine White

and knowing the appearance of William Cole, correct?”

Saylor responded “yes.” All of these circumstances

make Shenay and Saylor’s lay opinion testimony helpful

to the jury and thus admissible under Rule 701.

B. Demand Note

White next challenges the district court’s decision to

admit the demand note recovered in his rental vehicle,

claiming that the note was not properly authenticated,

that it was inadmissible hearsay, and that any probative

value was outweighed by unfair prejudice. At trial,

White objected to the admission of the demand note,

but solely because the bank teller had told authorities

that she didn’t think the note recovered looked like the

one used in the robbery. While in making this objection

White did not use the buzz word “authentication,” the

10 No. 10-1764

objection was sufficient to preserve the issue. Thus, we

review the question of authentication for an abuse of

discretion. United States v. Whitaker, 127 F.3d 595, 600-01

(7th Cir. 1997). However, before the district court,

White did not raise a hearsay or unfair prejudice objec-

tion to the admission of the demand note. Therefore, our

review of those two challenges is for plain error. Prymer

v. Ogden, 29 F.3d 1208, 1213-14 (7th Cir. 1994) (holding

that “[a] specific objection made on the wrong grounds

and overruled precludes a party from raising a specific

objection on other, tenable grounds on appeal”) (internal

quotation omitted).

We first consider White’s authentication objection.

Federal Rule of Evidence 901(a) requires, as a condition

precedent to admissibility, “evidence sufficient to sup-

port a finding that the matter in question is what its

proponent claims.” Fed. R. Evid. 901(a). In this case, at

trial the government presented the demand note as a

note recovered from White’s rental vehicle. And the

government presented evidence, in the form of testi-

mony from the officer who recovered the note, estab-

lishing that that was exactly what the note was. Thus,

the government properly authenticated the note.

White responds that even if the police found the note

in White’s rented car, the government did not properly

authenticate the note as the one actually used in the

bank robbery. But at trial the government never claimed

that the demand note recovered from White’s rental

car was the same one used during the robbery. In fact,

during closing argument, the prosecutor instead sug-

gested that it may “have been a practice note,” or it

No. 10-1764 11

could have “been intended to be the note that was used

and then misplaced so [White] had to make up another

note.” The district court likewise did not admit the note

on the premise that it was the one used during the rob-

bery, stating instead “whether it’s the same note that

he actually presented to her isn’t determinative of its

admissibility.” Because the demand note was admitted

at trial solely as a note recovered from White’s car,

there was no need for the government to further

establish that the note was the one used during the rob-

bery for it to be authenticated.1

Additionally, White claims on appeal that the demand

note was inadmissible hearsay. Hearsay is “a statement,

other than one made by the declarant while testifying

at the trial or hearing, offered in evidence to prove the

truth of the matter asserted.” Fed. R. Evid. 801(c). Hearsay

is inadmissible unless an exception applies. Fed. R. Evid.

802. In this case the demand note was not hearsay

because it was not offered to prove the truth of the matter

asserted. United States v. Bursey, 85 F.3d 293, 296 (7th Cir.

1996) (“[S]tatements that are offered not to prove ‘the

truth of the matter asserted,’ but for some other

legitimate purpose, do not qualify as hearsay.”). First, a

command is not hearsay because it is not an assertion

1

On appeal, the government claims the demand note was

authenticated by circumstantial evidence as the note used

during the bank robbery, see, e.g., United States v. DeGudino,

722 F.2d 1351, 1361 (7th Cir. 1983), but since the note was not

admitted for that purpose at trial, we need not decide

whether it was authenticated as such.

12 No. 10-1764

of fact. See United States v. Murphy, 193 F.3d 1, 5 (1st Cir.

1999) (explaining that “the out-of-court statements in

question were simply directions (e.g., to make false state-

ments in the warrant applications) and not statements

of fact at all,” and therefore the “evidence in question

was not hearsay at all”). Thus, the note’s directive to

“[g]ive me the money in the register. No dye packs, no

silent alarms,” is not hearsay. The only possible factual

assertions in the note were “I have a gun” and “and no

one will get hurt.” But the demand note was not ad-

mitted to prove the truth of either assertion. The gov-

ernment did not seek to prove that White actually had

a gun, but rather that the teller feared that he did; nor

did it seek to establish that no one would get hurt if

the teller complied with the robber’s demands. White

responds that the district court should have provided

the jury with a limiting instruction regarding the

proper use of the note. White, however, did not request

a limiting instruction and given that the government

never argued that the note was the one used in the

robbery or that White was actually armed during the

bank robbery, the district court did not commit plain

error in failing to sua sponte issue a limiting instruction.

Next, White argues that any probative value of the

demand note was outweighed by unfair prejudice, and

thus the district court erred in admitting the note

under Federal Rule of Evidence 403. Again, our review

is for plain error only. In this case there was no

error, much less plain error. The demand note recovered

from the car was extremely probative on the question

of whether White robbed the US Bank—it showed plan-

No. 10-1764 13

ning and preparation. White responds that the mention

of a gun in the note made it unduly prejudicial. But the

teller testified that the robber’s note had stated he had

a weapon and that at the same time that he slid her the

note, he reached toward his waistband, as if reaching

for a gun. That the note admitted at trial stated White

had a gun as opposed to a weapon does not make the

note unfairly prejudicial, and in any event, any unfair

prejudice is outweighed by the probative value of the

note. Accordingly, the district court did not err in ad-

mitting the demand note.

C. Sentencing

Finally, White challenges his sentence, claiming that the

district court erred in assessing him a two-level guideline

enhancement under § 2B3.1(b)(2)(F) for having made

a threat of death during a robbery. In concluding that

a § 2B3.1(b)(2)(F) enhancement was appropriate, the

district court found, based on the preponderance of the

evidence, that the demand note seized from White’s

rental car was the note used during the bank robbery.

Because that note stated that White had a gun, the

district court concluded that alone was sufficient to

support the § 2B3.1(b)(2)(F) enhancement. But the dis-

trict court also reasoned that White’s movement with

his hand to his waistband “would further cause a rea-

sonable teller to believe that defendant had a gun

and cause the teller fo fear death.” The district court

added that the teller’s actions, manner, and demeanor

in the video further caused the court to conclude that

the note constituted a threat of death.

14 No. 10-1764

On appeal, White again contends that the demand note

was not properly authenticated and thus could not be

used to support the § 2B3.1(b)(2)(F) enhancement. But the

Federal Rules of Evidence do not apply at sentencing

hearings—the only question is whether the evidence was

“reasonably reliable.” United States v. Morris, 76 F.3d 171,

174 (7th Cir. 1996). Moreover, we review the district

court’s judgment only for clear error, United States v.

Johnson, 324 F.3d 875, 877 (7th Cir. 2003), and the district

court did not commit clear error in finding that the de-

mand note recovered from White’s car was the one used

in the robbery. While the teller told police she didn’t

think it looked like the note White had given her, she

had also told officers that she had only skimmed the

note and, as the district court found, at the time of the

robbery she was frightened. Given that the recovered

demand note matched in all respects the one described

by the teller (written on lined notebook paper with

frayed edges and stating that the robber had a weapon,

demanding money, but no dye packs) and was re-

covered from White’s rental car, the district court could

reasonably believe that it was used by the robber and

the teller was mistaken. And because the district court

did not clearly err in finding that White had presented

the teller with a note which stated that he had a gun,

the district court properly enhanced White’s sentence

under § 2B3.1(b)(2)(F). United States v. Carbaugh, 141

F.3d 791, 794 (7th Cir. 1998). That is especially true

given that White also reached to his waistband as if he

had a gun, and given the teller’s fearful reaction cap-

tured on the surveillance video.

No. 10-1764 15

III.

The district court did not err in admitting testimony

from White’s sister and ex-girlfriend that he is the in-

dividual shown in a still photograph from the sur-

veillance video from the bank. This testimony was permis-

sible lay opinion evidence that helped the jury deter-

mine a question in fact, namely the identity of the

bank robber, and was extremely helpful given White’s

argument that Uncle Bill was the real perpetrator. The

district court also did not err in admitting the hand-

written demand note recovered from White’s rental car

because it was properly authenticated, not hearsay, and

its probative value outweighed any undue prejudice.

And the district court did not err in relying on that

note to enhance White’s sentence for having made a

threat of death during the robbery. We A FFIRM .

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