United States v. Dante Jones

In the

United States Court of Appeals

For the Seventh Circuit

Nos. 11-3864 & 12-1695

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DANTE JONES and ROBERT R. BROWN,

Defendants-Appellants.

Appeals from the United States District Court for the

Eastern District of Wisconsin.

No. 11-CR-52 — J.P. Stadtmueller, Judge.

ARGUED MARCH 1, 2013 — DECIDED JANUARY 9, 2014

Before ROVNER, WILLIAMS, and HAMILTON, Circuit Judges.

ROVNER, Circuit Judge. On November 1, 2011, a jury found

Robert R. Brown guilty of armed bank robbery under 18 U.S.C.

§§ 2 & 2113(a) and (d), and brandishing a firearm in connection

with a crime of violence under 18 U.S.C. §§ 2 and

924(c)(1)(A)(ii). Those charges stemmed from the armed

robbery of the Guaranty Bank in Milwaukee, Wisconsin, on

October 21, 2010. Dante D. Jones acknowledged participating

in that robbery as a getaway driver, but the government agreed

to drop that charge against him as well as the charge in a

2 Nos. 11-3864 & 12-1695

second bank robbery, and to prosecute him only on a third

bank robbery charge, and Jones testified against Brown in

Brown’s trial for the Guaranty Bank robbery.

Brown appeals his conviction arguing that the court

allowed the government to introduce expert testimony as lay

testimony, that the jury instructions reduced the government's

burden of proof, and that improper closing argument state-

ments by the government denied him a fair trial. Jones, who

pled guilty to reduced charges, appeals only his sentence. This

court sua sponte consolidated both appeals.

The central issue in Brown’s trial was whether he was one

of the two men who entered the bank on October 21 and

robbed it. The testimony at trial as to the identity of the

perpetrators consisted primarily of Jones’ testimony, but also

included testimony from the witnesses at the bank at the time

and videotapes of the incident. That testimony established that

two men entered the bank on October 21, 2010, wearing hats or

hoodies, as well as masks or clothing over their faces that

revealed only their eyes. Both men wore gloves, and accord-

ingly there was no fingerprint evidence identifying the

perpetrators. Because of those efforts to conceal their identities,

bank employees could provide only general descriptions of the

height, race and ages of the offenders. One of the men bran-

dished a gun throughout the ordeal.

After entering the bank, one of the men shouted for

everyone to get down. As one of them jumped over the teller

counter, the other pointed his gun at bank employee Alice

Paeglow. Paeglow handed money from her register over the

counter to the man with the gun. The man behind the teller

Nos. 11-3864 & 12-1695 3

counter removed money from two drawers, handing at least

some of that to his accomplice. Bank teller Stephanie Arndt

testified that her register contained a dye pack as well as ?bait

money.” She testified that a dye pack looks like a pack of $20

bills but contains a sensor that causes it to count down after it

exits the bank and then explode, spewing red dye and causing

burns. Paeglow also testified that Brown retrieved the dye pack

along with cash from her drawer. The assistant bank manager

Mariam Qteiry testified that at some point the man behind the

counter (identified by Jones as Brown) placed his hand into his

left pocket, and the videotape from the bank surveillance

cameras also showed him stuffing something into his left

pocket as he left the bank.

Jones testified that he and Brown met with Lorenzo Lardy-

dell on the morning of the robbery with the intent to purchase

marijuana, when Lardydell said he was going to rob a bank

and urged them to join him. Jones testified that the plan was

for Lardydell to hold the gun and for Brown to hurdle the

counter and grab as much money as possible, and after

viewing the surveillance video from the bank Jones testified

that the robbery proceeded according to that plan. Lardydell

had a mask and Brown had torn his shirt to make a face-cover

for himself. Jones further testified that when Lardydell and

Brown exited the bank, Lardydell was carrying the bag and it

began to smoke. They entered the car with the bag still

smoking, but as tear gas began to build up Lardydell threw the

bag from the car. Lardydell left the car later in order to try to

retrieve the bag, and Brown and Jones drove away. Jones

testified that approximately 12 blocks north and 2 blocks east

of the bank, Brown began to throw money out of his pocket

4 Nos. 11-3864 & 12-1695

because his pants were essentially on fire. The dye pack had

apparently exploded in his pocket where he had stuffed some

of the money from the teller drawer. They continued driving

to the home of Brown’s sister, at which time Brown showed

Jones a grapefruit-sized blister on the thigh area of his left leg.

Consistent with that testimony, the police recovered a dye-

stained messenger bag containing money, a gun, and a dye

pack with part of the words ?Guaranty Bank,” from a street

immediately west of the bank. They retrieved the second dye

pack from an alley approximately 14 blocks away from the

bank. The government also introduced the testimony of

Detective Ralph Spano, who participated in the investigation

of the case. Spano testified regarding the firearm from the

robbery and the number of associates with whom Dante Jones

committed crimes, and also provided testimony regarding the

characteristics of dye packs. In part, Spano testified that a dye

pack contains a timing device that can be set to detonate

between 10 to 30 seconds after it passes the bank’s exit, and

that the timing of the detonation is dependent upon the

environment of the bank to ensure that it explodes shortly after

the exit to create witnesses that are outside the bank. Spano

also testified that upon detonation the dye pack instantly burns

at about 400 degrees and releases smoke, tear gas, and red dye.

When asked if he had ever personally observed a situation in

which a dye pack detonated near a person’s skin, Spano

responded that he had seen that three to five times in his career

and he described his observations. He stated that he had seen

people stuff the dye packs down their pants and suffer very

badly burned genitalia, place them in the side pants pockets in

which the dye packs burned through the inner lining of the

Nos. 11-3864 & 12-1695 5

pockets and burned their legs, and position the dye packs in

large puffy jackets where the packs burned through the jackets

but not the inner clothes which were stained with the dye.

The government subsequently introduced photographs of

Brown’s left leg, but no government witness testified that the

marks on his leg were burn marks. Brown, however, produced

a witness who testified that he burned that leg when a firework

hit him at a family picnic at a park.

Brown also challenged Jones’ credibility by presenting

evidence to the jury that Jones had a powerful incentive to

implicate him in the robbery. Jones was implicated in three

bank robberies, and testified that the government did not

charge him in two of those robberies, including the Guaranty

Bank robbery, dropped one of the two charges in the third

robbery, and agreed to recommend a lower sentence for that

remaining charge. In addition, Brown demonstrated that Jones

lied to the police when he spoke with them about the robberies

in March 2011, in that he told the police that Brown was at the

house when he and others were planning a different robbery,

but in fact Brown was in custody on an unrelated matter on

that date. Jones also acknowledged that when he initially spoke

to the police he could not immediately recall which leg Brown

had burned. Finally, Jones acknowledged that while speaking

with the police in March 2011, he learned that Brown was the

person who implicated Jones in a previous armed robbery

involving Jones’ friend, which had resulted in Jones’ losing a

number of close friendships, and that he was angry about that

situation.

6 Nos. 11-3864 & 12-1695

Brown first argues that this court should vacate his convic-

tion because the district court erred in allowing Detective

Spano to testify as to the nature of dye packs. Brown asserts

that Spano thereby presented expert witness testimony without

complying with the evidentiary rules cabining such testi-

mony—specifically Federal Rules of Evidence 701 and 702.

Rule 701 provides that ?a witness who is not an expert may

offer an opinion when it is: ‘(a) rationally based in the witness’s

perception; (b) helpful to clearly understanding the witness’s

testimony or to determining a fact in issue; and (c) not based

on scientific, technical, or other specialized knowledge within

the scope of Rule 702.’” United States v. Mendiola, 707 F.3d 735,

741 (7th Cir. 2013), quoting Fed. R. Evid. 701. Where testimony

is based on specialized knowledge within the scope of Rule

702, it has to comply with some safeguards of expert testi-

mony, which include a requirement that such testimony be

disclosed to the defendant prior to trial. See United States v.

York, 572 F.3d 415, 421 (7th Cir. 2009); Fed. R. Crim. P.

16(a)(1)(G). Therefore, the initial question is whether the

testimony crossed the line to expert testimony.

Because no objection was raised at trial to Spano’s testi-

mony, we review only for plain error. In order to meet that

standard, Brown must demonstrate an error that is clear or

obvious, that affected his substantial rights in that he probably

would not have been convicted absent the error, and that

seriously affected the fairness, integrity, or public reputation of

judicial proceedings. United States v. Christian, 673 F.3d 702, 708

(7th Cir. 2012).

Nos. 11-3864 & 12-1695 7

The government concedes that Spano was a dual capacity

witness in that some of his testimony regarding the nature of

dye packs could fall within Rule 702. See Id. at 712. We agree,

but a more precise delineation is necessary because not all of

the testimony relating to dye packs falls within Rule 702.

We have discussed in numerous opinions the differentia-

tion between lay and witness testimony. Lay testimony is

based upon one’s own observations, with the classic example

being testimony as to one’s sensory observations. Mendiola, 707

F.3d at 741. In Mendiola, we stated that the Rule 701 standard

is essentially an importation of the personal knowledge

requirement. In contrast, testimony moves from lay to expert

if an officer is asked to bring her law enforcement experience

to bear on her personal observations and make connections for

the jury based on that specialized knowledge. Christian, 673

F.3d at 709–10. This differentiation arises frequently in cases in

which officers testify as to the meaning of code words used in

drug transactions. See, e.g., United States v. Moreland, 703 F.3d

976, 983 (7th Cir. 2012); York, 572 F.3d at 420. In order to avoid

detection, participants in illegal drug transactions typically do

not directly refer to drug names or the amount of money

involved. Officers in subsequent criminal trials therefore are

often called to help interpret for the jury the meaning of the

words used in the tape or phone recordings. We have held that

where the witness’s testimony is based upon his own interac-

tions with the parties in the course of the investigation, then it

is based on personal knowledge and constitutes lay testimony.

Id. Where, however, it is based upon the officer’s experience

over the years in narcotics investigations, and the officer is

providing an opinion based on that experience as to what the

8 Nos. 11-3864 & 12-1695

code words mean in the present transaction, then it is expert

testimony. Id. We have held that such testimony which goes

beyond the observations that a normal person could make, and

is based instead on the specialized knowledge obtained

through experience in the field, must meet the requirements of

Rule 702 as expert testimony. York, 572 F.3d at 420; Sanchez v.

City of Chicago, 700 F.3d 919, 930 (7th Cir. 2012).

Applying those principles to the testimony of Spano yields

a mixed bag. There is no dispute that in testifying as to the

investigation itself, Spano was a lay witness. Brown asserts,

however, that Spano’s testimony regarding the dye packs was

expert testimony and that the government failed to follow the

requirements for such testimony in that it failed to disclose it

and failed to properly qualify Spano. As to some such testi-

mony, we agree. Spano testified that the dye packs were all

manufactured by one company, that they contained a timer

which could be set to detonate the dye pack within 10 to 30

seconds of exiting the bank, that the dye packs instantly

burned at 400 degrees, and that timers were set based upon the

environment of the bank so as to ensure they would go off

shortly after the exit from the bank so as to maximize the

possibility for witnesses outside the bank.

That testimony was based on technical, specialized knowl-

edge obtained in the course of his position, and was not based

on personal observations accessible to ordinary persons.

Accordingly, it fell within Rule 702, and the government

should have qualified Spano as an expert and followed the

disclosure rules prior to soliciting that testimony.

Nos. 11-3864 & 12-1695 9

Spano also was asked, however, whether he had ever

witnessed the aftermath of a dye pack exploding near a

person's skin. Spano then testified that he had observed that

situation on three to five occasions. Among those, he testified

that he had observed burns to the leg or genital area caused by

dye packs stuffed down pants or placed in pant pockets, and

a burn through a large puffy jacket caused by a dye pack

detonating in it. That testimony was nothing more than

Spano’s recollection of personal observations. It was in fact

precisely the type of sensory observations specifically identi-

fied as lay testimony in Rule 701. There is nothing in that

testimony that reveals opinions or knowledge that could not

equally have been observed by other persons in that situation.

The government could have ventured into the territory of

expert testimony here if it had gone one step further and

solicited an opinion as to the nature of Brown’s scars on his leg.

If the government had showed the picture of the leg and asked

Spano if based on his observations of past dye pack incidents,

those scars were of the type that would be caused by a dye

pack exploding, then that would have been the type of testi-

mony dependent on specialized knowledge and experience

that falls within expert testimony. The government did not do

so, and in fact Brown acknowledges in his brief that the

government did not present any testimony that the scars on his

leg were burns of any sort. The testimony by Spano concerning

burns caused by dye packs was therefore proper lay testimony,

and the district court committed no error in allowing the

testimony to be presented.

The question, then, is whether the introduction of the

admittedly expert testimony as to the nature of dye packs was

10 Nos. 11-3864 & 12-1695

itself enough to constitute plain error. We need not consider

whether the error could be considered plain, because Brown

cannot demonstrate that he would not have been convicted

absent the error, or that the introduction of that testimony

without complying with the expert testimony requirements

resulted in a miscarriage of justice. First, Brown does not argue

that Spano—who testified to having investigated between 800

and 1,200 bank robberies in his career—was actually unquali-

fied, nor does he question the validity of the information as to

the dye packs concerning the timers or the heat produced by

the packs upon detonation. In other cases, we have held that

the failure to raise any such challenge was itself enough to end

the matter. See United States v. Tucker, 714 F.3d 1006, 1016 (7th

Cir. 2013); York, 572 F.3d at 422. In fact, Brown even knew the

nature of the testimony that Spano would provide, because the

government had given Brown the exhibit concerning dye packs

that it intended to introduce during Spano’s testimony, thus

fulfilling some of the same purposes as the disclosure require-

ment. We need not rely on those grounds, however, because,

more significantly, none of that evidence was damaging to

Brown, and certainly none of it was so damaging as to consti-

tute error that is plain and that resulted in a miscarriage of

justice.

The harm alleged by Brown centers on the testimony that

dye packs contain timers that can be set to different times, and

that they burn at 400 degrees. The latter point is harmless here

because, as we have already held, Spano’s testimony as to his

observations of burns caused by exploded dye packs was

permissible lay testimony. Moreover, teller Stephanie Arndt

also testified without objection that dye packs possess sensors

Nos. 11-3864 & 12-1695 11

which initiate a countdown when they exit the bank, and that

the dye packs spew red dye and cause burns when they

explode. Thus, the problematic testimony by Spano added little

to the case. The precise degree at which the dye packs burn

was not of enough significance to have potentially impacted

the verdict. The testimony as to the timers was not similarly

cumulative, but it also was harmless error. In fact, that testi-

mony was helpful to Brown and was exploited by his defense

counsel to Brown’s advantage. Brown focuses on Spano’s

testimony that the timers could be set from 10 to 30 seconds,

and argues that it provided support for the government’s

testimony that one dye pack exploded long after the first one.

Spano testified, however, that the timer is set based on the

environment of the bank, so as to allow the packs to go off at

a point after the robbers exit the bank to maximize the poten-

tial for witnesses. Spano never testified that timers for one

bank would be set at two different times, and in fact his

explanation as to how the timing was determined would argue

against different timing on dye packs for the same bank

environment.

Brown’s counsel explored that line of reasoning in cross-

examining Spano, obtaining testimony from Spano that

supported an argument that the timers would have detonated

close in time to each other immediately after the robbers’ exit

from the bank, and not at the disparate times suggested by the

government’s version of events. Toward that end, Brown’s

counsel elicited testimony from Spano that: there was only one

U.S. manufacturer of dye packs; the timer is set based on the

environment so as to go off just after someone exited the

bank’s premises; the adjustment of the timer was based on that

12 Nos. 11-3864 & 12-1695

environment; and because people witnessed the robbers

running to the vehicle followed by a cloud of red dye, that

indicated there was a fairly short time in which that timer

device was set. He also established through cross-examination

that red dye is almost impossible to remove from clothing, and

that no one in the course of the investigation claimed to have

seen Brown in red-dye stained clothing.

Accordingly, Brown’s counsel elicited testimony from

Spano confirming that the timer would be set based on the

environment of the bank, so as to detonate shortly after exiting

the bank, minimizing danger to those inside the bank and

maximizing the potential for witnesses to the robbers’ exit.

Moreover, Brown’s defense counsel referenced Spano’s

testimony in closing argument, not for the purposes of distin-

guishing it, but as support for the argument that the timers

would be set based on the environment of the bank and would

not have detonated separately. Because the testimony was at

least as supportive of the defense position as that of the

government, and in fact arguably much stronger for the former

insofar as the timing issue, any errors in the inclusion of that

testimony were harmless and could not have resulted in a

miscarriage of justice.

Brown raises myriad other challenges to his conviction,

none of which have merit. First, he argues that the conviction

cannot stand because the jury relied on confusing jury instruc-

tions that improperly reduced the government's burden of

proof. Brown acknowledges that this objection was not raised

in the trial court, and therefore we review this claim only for

plain error.

Nos. 11-3864 & 12-1695 13

Brown asserts that an element of both of the charged

offenses was using or carrying a gun, but that there was no

evidence that Brown ever used or carried the gun in connection

with the robbery. He argues that the jury instruction shifted

the focus to the actions of his accomplice, allowing the jury to

convict if he or his accomplice committed the elements of the

offense, and using language of joint venture liability although

Brown was not charged with conspiracy. Brown acknowl-

edges, however, that a defendant need not commit each

element of the charged offense personally, and that a defen-

dant who knowingly aided and abetted the commission of the

offense may be guilty of that offense to the same extent as the

principal. He asserts, however, that the instructions did not

adequately require the jury to determine that he knowingly

aided the use of a firearm during the robbery. This argument

is doubly flawed. First, as Brown admits, the district court

issued an instruction concerning the knowledge necessary to

aiding and abetting liability. Thus, there was no failure to

adequately set forth the law. Second, the knowledge element

was never in dispute in this criminal case, and therefore even

if the instructions had been confusing as to that requirement,

Brown could not demonstrate plain error. Brown's theory of

the case was that he was not the person in the bank, not that he

participated in the robbery but was unaware of the use of the

firearm. Moreover, the firearm was brandished by the other

perpetrator immediately upon entering the bank, and was

visibly used throughout the robbery, and therefore there is no

basis whatsoever for any argument that the co-perpetrator

lacked knowledge of the firearm. See United States v. Woods,

148 F.3d 843, 847 (7th Cir. 1998). Thus, Brown could not

14 Nos. 11-3864 & 12-1695

demonstrate any miscarriage of justice under the plain error

standard.

Lastly, Brown challenges a plethora of closing remarks by

the prosecutor, contending that those statements taken as a

whole deprived him of a fair trial. Nearly all of those state-

ments, however, are not improper and therefore we need not

consider whether those statements, none of which yielded

objections at trial, constituted plain error. For instance, Brown

argues that no evidence was introduced at trial that the police

relied on Jones' statements to obtain a search warrant to

examine Brown's leg for burn marks, yet the government

suggested as much in closing arguments. That is not a fair

characterization of the prosecutor's statement. The prosecutor

stated:

Dante Jones knew that those—that that burn would

be there. He saw the burn afterwards. He told the

police what he saw. The police then get a search

warrant and examined Mr. Brown; and lo and

behold, Mr. Brown still bore the scars from that

incident and from that burn.

Trial Transcript Volume 2 at 34. That statement does not

indicate at all what was in the search warrant. It merely sets

forth the trial evidence that the police spoke with Jones who

informed them of the burn and that the police obtained a

warrant to search Brown for that burn. The implication that

Jones' statements formed the basis for the warrant is a natural

one from the trial testimony, but the government does nothing

more than set forth the evidence. Brown's attempt to character-

Nos. 11-3864 & 12-1695 15

ize that as testimony without any basis in the evidentiary

record is meritless.

Similarly, Brown argues that the government, without any

basis in the record, asserted that Jones was “very clear” in his

statements, when actually the trial testimony indicated that

Jones was initially ambiguous as to which leg was burned.

That is not prosecutorial misconduct; it is a proper argument

to the jury as to the testimony the jury heard, and the jury

could itself weigh whether the testimony was in fact clear or

not. Those are the first two of many statements challenged by

Brown, and the rest fare no better. With one exception, the

remaining challenges represent similarly strained readings of

proper closing arguments, and therefore do not present any

basis for attacking his conviction under either his theories of

prosecutorial misconduct or his theory that the prosecutor

imposed an improper burden of proof. The record simply does

not support any non-frivolous argument of such errors. We

address only the arguable error.

Brown identifies one statement that constituted an im-

proper expression of the prosecutor's personal belief as to a

witness's credibility, in the following statement on rebuttal:

You're going to have to assess for yourselves what

you think of Mr. Jones and his demeanor. I thought

he was—He seemed very candid. He said, for

example, he said, there was a question, were you

angry about what Brown had done. He said yes. He

didn't say, well, no, that wasn't really anything. …

Trial Transcript Volume 2 at 46–47. The prosecutor erred in

giving his own personal opinion as to whether Jones was

16 Nos. 11-3864 & 12-1695

credible. In the context of the statement and the trial as a

whole, however, that did not rise to plain error. First, the

improper statement was couched in a discussion of what the

evidence demonstrated as to Jones’ credibility, rather than a

personal statement based on the prosecutor's exposure to Jones

as a person. Moreover, that was one statement in a series of

points made by the prosecutor as to how the evidence sup-

ported Jones' version of events, and the focus overwhelmingly

was on the trial evidence. The prosecutor also made clear at the

same time that the jury was going to assess for itself whether

Jones was credible. Finally, as Brown acknowledges, the

district court instructed the jurors that the arguments of

counsel are not evidence, that the jurors are the sole judges of

credibility, and that their own recollection of the evidence

controls. The sole improper statement was not significant

enough to satisfy the plain error standard, and the other

closing argument statements were arguments based on the

evidence not expressions of personal opinion. Accordingly,

Brown has failed to raise any viable challenge to his conviction.

We turn, then, to Jones, who pled guilty in the district court

and raises only a challenge to his sentence in this appeal. Jones

acknowledges that he was a career offender for purposes of

determining the applicable Sentencing Guidelines range. As a

career offender he faced a Guidelines range of 188 to 235

months. The district court, however, determined that it did not

want to apply the career offender classification. Without the

career offender consideration, Jones would have faced a

Guidelines range of 100 to 125 months, and with a thirty

percent reduction under U.S.S.G. § 5K1.1 for his substantial

assistance to the government in other cases, he claims the only

Nos. 11-3864 & 12-1695 17

reasonable sentence would fall within the 70 to 85 month

range.

Jones errs as an initial matter in his argument as to the

appropriate Guidelines range. By his own admission, Jones

qualified for classification as a career offender, and therefore

his appropriate range under the Guidelines was 188 to 235

months. The district court determined that the full impact of

the career offender classification was inappropriate for him.

That does not, however, negate it as a consideration, nor does

it alter the Guidelines range to the lower amount. It is not, as

Jones would assert, an all or nothing proposition. The court

could determine not to apply the full amount of the career

offender increase, but still consider that status or his criminal

history in determining an appropriate middle ground. United

States v. Liddell, 543 F.3d 877, 884–85 (7th Cir. 2008) (noting that

the district court is free to reject the advice of the Guidelines,

including the career offender guideline). That is precisely what

the court did here, stating that although Jones technically

ought to be sentenced under the Guidelines as a career

criminal offender, the actual sentence should be tempered both

by the grant of the substantial assistance departure under

§ 5K1.1 and the fact that the career offender status overstates

what is appropriate. The court concluded that some incremen-

tal increase was necessary based on Jones’ career criminal

status, but not the full breadth and depth of the Guidelines

increase. Weighing all of the factors, the court reached a

sentence of 100 months. That is a proper exercise of the court’s

discretion, and is even less than the Guidelines range. See

United States v. Smith, 721 F.3d 904, 908 (7th Cir. 2013) (noting

that we apply a presumption of reasonableness to sentences

18 Nos. 11-3864 & 12-1695

within the Guidelines range). Jones is simply wrong in sug-

gesting that a reluctance to impose the entire career offender

amount negated that factor from consideration at all. The court

imposed a below Guidelines sentence, and Jones has failed to

demonstrate that the sentence was outside the bounds of

reason or that it was based on consideration of improper

factors or a misapplication of the Guidelines. See Smith, 721

F.3d at 908.

Accordingly, Brown’s challenge to his conviction and Jones’

challenge to his sentence are without merit.

AFFIRMED.