United States v. Loggins, Debra

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 06-1535

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DEBRA LOGGINS,

Defendant-Appellant.

____________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 04 CR 537—Charles R. Norgle, Sr., Judge.

____________

ARGUED JANUARY 18, 2007—DECIDED MAY 9, 2007

____________

Before BAUER, MANION, and ROVNER, Circuit Judges.

BAUER, Circuit Judge. A jury convicted Debra Loggins

of robbing a federal credit union in violation of 18 U.S.C.

§ 2113(a). The district court sentenced her to seventy-four

months’ incarceration. She appeals, claiming that the

district court erred in (1) barring admission of a state-

ment made by one of her co-defendants; (2) not requiring

her co-defendants to exercise their Fifth Amendment

privilege in the presence of the jury; and (3) denying her

motion for a new trial. We affirm.

2 No. 06-1535

I. Background

On May 27, 2004, Loggins, Tyron Love, Nicole Reynolds,

and Mario Johnson drove to a Motel 6 in Harvey, Illinois.

According to Reynolds, before reaching the motel, they

stopped at a K-mart, where Loggins and Reynolds pur-

chased bandanas and toy guns. Reynolds testified that

later at the motel, Loggins removed a gun from her purse,

showed it to the other three, and instructed Johnson to

carry it the next day because he sounded like the most

convincing bank robber. Loggins denied being a party to

this exchange and claimed that she did not hear her co-

defendants discuss the planned robbery.

The next morning, May 28, Loggins drove Love,

Reynolds, and Johnson to the Illiana Financial Credit

Union (“IFCU”) in Calumet City, Illinois. Loggins parked

the car in the credit union’s lot and remained in the

driver’s seat. Reynolds went into the credit union and

asked to use the bathroom. When she left the bathroom,

Johnson and Love entered the credit union and, with guns

drawn, took $7,290. Then, all three ran from the credit

union with Love carrying a bag. Loggins admitted that

at this point she knew that they had robbed the credit

union. When they jumped into the car, Love began scream-

ing at Loggins to drive away. Loggins obliged.

As Loggins pulled away from the credit union, she nearly

collided with Pamela Cruz, a vigilant credit union em-

ployee, who was arriving for work. A moment later, a dye

pack exploded in the bag, and Cruz watched red smoke

fill Loggins’s car. Cruz promptly called 911 to report

what she suspected was a robbery. Love dropped the

bag from the car, and the four continued driving. Cruz

followed the car as it traveled away at a high rate of

speed down local streets and a frontage road along the

expressway before eventually turning into a condominium

complex. The car broke through the entrance gate of the

complex. At this point, Cruz stopped her pursuit.

No. 06-1535 3

At the back of the condominium complex, Loggins

instructed everyone to get out of her car. Loggins retrieved

her purse from the trunk, while Love and Johnson dis-

carded their stained sweatshirts into the trunk. The four

walked away from the vehicle towards the front entrance

of the condominium. Shortly thereafter, several Calumet

police officers arrived and confronted them.

Loggins informed the officers that she had a loaded

silver Smith & Wesson .38 revolver gun in her purse. The

officers inspected Loggins’s car, observing red dye stains

on the front passenger seat and scratches and scrapes on

the outside of the vehicle that were caused when the car

struck the entrance gate to the condominium complex. The

officers also recovered two toy guns from the passenger’s

seat and the back seat.

At the police department, Loggins made written and

oral statements acknowledging that she had heard her co-

defendants plan a robbery on the eve of the IFCU robbery,

and she was aware that her co-defendants had intended

to rob the bank. In the statement, Loggins wrote, in part,

“I provided a ride to the bank for some of my friends

who had jokingly talked about getting some money.

I didn’t really believe that they were going to actually

rob the place until we arrived and they got out of the car

and proceeded to go into the bank.” According to Agent

Grodsinsky, Loggins also said that the gun in her purse

was hers and that she had carried it continuously since

purchasing it many years ago.

Love, Johnson, and Reynolds pleaded guilty to two

counts of robbery: a prior robbery of the Fifth Third

Bank in Berwyn that occurred on May 22, 2004, and the

May 28, 2004 robbery of the IFCU in Calumet City—all in

violation of 18 U.S.C. § 2113(a). Loggins pleaded not guilty.

Prior to Loggins’s trial, she filed a motion to compel the

testimony of her co-defendants Love and Johnson, and,

4 No. 06-1535

alternatively, to require them to invoke their Fifth Amend-

ment in the presence of the jury. Loggins also moved to

admit the statement of Love’s attorney at his plea hearing

that Loggins “was present” at the robbery “but didn’t

know what was about to happen.” The district court

denied both motions.

At trial, Loggins contradicted the statements she made

shortly after the robbery by testifying that she had no

idea that her co-defendants were going to rob the IFCU.

She admitted that she knew her co-defendants had

robbed the IFCU upon their return to her car when she

saw the bag full of money. She also admitted to driving

them away from the IFCU at a high rate of speed. Loggins

contended that she had panicked and merely wanted to

get away.

During the trial in-chief, the prosecution and defense

counsel elicited testimony that toy guns were used in the

commission of the robbery. During its rebuttal argument,

the prosecution asserted that Loggins’s .38 revolver was

used. Loggins’s objection was overruled by the district

court. The jury returned a guilty verdict, and the district

court sentenced Loggins to seventy-four months’ imprison-

ment. Loggins timely filed this appeal.

II. Discussion

A. Love’s Statement

At Love’s plea hearing, the government asserted that

Loggins acted as a getaway driver during the robbery of

the IFCU. Love disagreed and his attorney contended that

Loggins “was present” at the robbery of the IFCU “but

didn’t know what was about to happen.” Only the dis-

trict court questioned Love about his plea and his in-

volvement in both robberies.

No. 06-1535 5

Loggins moved to admit the statement of Love’s attor-

ney as a statement against interest under Federal Rule of

Evidence 804(b)(3), as former testimony under Federal

Rule of Evidence 804(b)(1), and as exculpatory evidence

under Chambers v. Mississippi, 410 U.S. 284, 93 S. Ct.

1038, 35 L. Ed. 2d 297 (1973). The district court denied

the motion, finding that the statement was unclear and

that “Love cannot testify as to what Loggins did or didn’t

know with respect to either of these robberies.” Addition-

ally, the court found there was no showing that the

statement was against the penal interest of the speaker,

that it was trustworthy, or that there were corroborat-

ing circumstances. We review a district court’s evid-

entiary rulings for an abuse of discretion. United States

v. Bonty, 383 F.3d 575, 579 (7th Cir. 2004).

1. Statement Against Interest

To introduce a hearsay statement under Federal Rule

of Evidence 804(b)(3), the proponent must establish that

(1) the declarant is unavailable as a witness, (2) the

statement was against the declarant’s penal interest

when made, and (3) corroborating circumstances clearly

suggest that the statement is trustworthy. Bonty, 383 F.3d

at 579. The district court found that Loggins could not

meet the second and third prongs of the test; we agree.

Love’s attorney’s statement did not implicate him nor

could it subject him to criminal liability. See Bonty, 383

F.3d at 575 (holding that a statement that defendant had

nothing to do with the criminal events did not tend to

implicate the declarant and was not against the declarant’s

penal interest). Nor does a statement by an attorney as to

his client’s belief about another person’s state of mind

“clearly suggest that the statement is trustworthy.”

6 No. 06-1535

2. Former Testimony

Loggins next asserts that Love’s attorney’s statement

is former testimony. Federal Rule of Evidence 804(b)(1)

provides that, as an exception to the hearsay rule, former

testimony of an unavailable witness is admissible if it is

[t]estimony given as a witness at another hearing of

the same or a different proceeding, or in a deposition

taken in compliance with law in the course of the same

or another proceeding, if the party against whom the

testimony is now offered, or, in a civil action or pro-

ceeding, a predecessor in interest, had an opportunity

and similar motive to develop the testimony by direct,

cross, or redirect examination. Fed. R. Evid. 801(b)(1).

The district court found that the statement by Love’s

attorney did not qualify under this hearsay exception

because the government did not have the opportunity to

cross-examine. We agree.

Loggins also challenges the exclusion of the testimony

based on her Sixth Amendment right to present a defense.

The Supreme Court has held the rigid application of state

evidentiary rules unconstitutional when such an applica-

tion infringes upon the right to present witnesses in

one’s own defense, particularly when that testimony is

critical to the defense’s theory of the case. Chambers, 410

U.S. at 302-03. However, the right to confront and to

cross-examine witnesses is not absolute and may, in

appropriate cases, bow to accommodate other legitimate

interests in the criminal trial process. Chambers, 410 U.S.

at 295.

In Chambers, the defendant sought to introduce the

out-of-court statements of a man, Gable McDonald, who

declared that it was he, and not the defendant, who had

committed the murder at issue. McDonald made a sworn

confession and also admitted to the murder in private

No. 06-1535 7

conversations with several of his friends but later repudi-

ated his statements. As a result, the trial court prevented

the defense from calling McDonald as an adverse witness

and refused to allow the testimony of three witnesses to

whom McDonald admitted committing the murder, rul-

ing those statements to be hearsay. The Supreme Court

ruled that under the facts and circumstances of that

particular case, the mechanistic application of state

evidentiary rules, which prevented the defense from

introducing evidence regarding McDonald’s confession,

violated the defendant’s due process rights. Chambers, 410

U.S. at 302-03; Horton v. Litscher, 427 F.3d 498, 506 n.13

(7th Cir. 2005). The Supreme Court found that the wit-

nesses’ hearsay testimony was critical to the defendant’s

defense and noted that the statements were made “under

circumstances that provided considerable assurance of

their reliability” because there were multiple admissions

by another individual that he was the actual killer. Id.

at 300.

Here, the evidence lacks this exculpatory significance

and the reliability necessary to support a Sixth Amend-

ment. The fact that “Loggins was present” at the robbery

is undisputed. That she “didn’t know what was about to

happen” has little exculpatory significance. Although it

could corroborate Loggins’s trial testimony that she did not

initially know about the robbery, nevertheless, as she

admits, she knew of the robbery when her co-defendants

came running from the credit union to her car. We find

that the district court did not abuse its discretion by

excluding Love’s statement.

B. Fifth Amendment Privilege

Loggins next claims the district court erred by denying

her request that her co-defendants exercise their Fifth

Amendment privilege in the presence of the jury. Prior to

8 No. 06-1535

trial, Loggins subpoenaed Love and Johnson to testify on

her behalf. Loggins then moved to compel the testimony of

co-defendants Love and Johnson and, alternatively, to

require them to invoke their Fifth Amendment right

before the jury. The district court permitted Loggins to

question them at a hearing. Both Love and Johnson

invoked their Fifth Amendment right against self-incrimi-

nation in response to each question. Following the ques-

tioning, the district court denied Loggins’s motion to

compel their testimony and the alternative request to

require them to invoke their Fifth Amendment right

before the jury. The court found a reasonable basis for

the invocation of the privilege. We review a district court’s

denial of a defendant’s motion to compel a witness to

exercise his Fifth Amendment privilege in the presence of

the jury for an abuse of discretion. United States v.

Mabrook, 301 F.3d 503, 506 (7th Cir. 2002).

Loggins argues that the jury should have been permitted

to draw an inference from her co-defendants’ invocation of

their right against self-incrimination, citing to United

States v. Hartmann, 958 F.2d 774, 789 (7th Cir. 1992).

Normally, it is improper for a jury to draw any inference

from a person’s exercise of his Fifth Amendment right

against self-incrimination. United States v. Taylor, 154

F.3d 675, 684 (7th Cir. 1997); Mabrook, 301 F.3d at 507.

“We have never found that it is permissible for a jury to

make an inference from the invocation of a witness’s

assertion of the Fifth Amendment and Hartmann only

references a First Circuit case stating that the jury

may make an inference from the assertion of the privilege

during cross-examination.” Mabrook, 301 F.3d at 507

(internal citations omitted). The district court did not

abuse its discretion.

No. 06-1535 9

C. Motion for a New Trial

Lastly, Loggins challenges the district court’s denial of

her motion for a new trial because the government’s

rebuttal argument changed its theory of the case by

asserting that Loggins’s gun was used in the commission

of the offense rather than the toy guns. Although use of a

firearm was not an element of the charge, it suggests a

greater connection between the defendant and the crime

by showing that Loggins was a fully knowing participant

in the robbery. Because Loggins’s trial defense was that

she was unaware that her co-defendants were planning to

rob the credit union, she asserts that this prejudiced her

case. Based on earlier representations, Loggins asserted

that she reasonably expected that the government had

agreed with the defense that the toy guns were used in the

robbery. As a result, Loggins opted not to address the

issue in her own testimony, through expert testimony, or

in her cross-examination of the bank tellers. Additionally,

Loggins claims she would have sought to admit state-

ments made by her co-defendants indicating that they

used toy guns during the robbery.

At trial, there was disputed testimony as to the descrip-

tion of the toy guns. At various times, the toy guns were

referred to as “silver with a brown handle” or “short and

green.” Loggins’s weapon was consistently referred to as

“very long,” “big,” and “silver.” Despite this descriptive

testimony, no witnesses were asked to identify which gun

was used in the robbery. All three guns and photos of

the toy guns, as they were found in the getaway car, were

introduced into evidence.

We review the denial of a motion for a new trial for an

abuse of discretion. United States v. Childs, 447 F.3d 541,

544 (7th Cir. 2006). The charge against Loggins did not

require that the government prove that a real weapon was

10 No. 06-1535

used during the course of the robbery.1 Whether the gun

was real or a toy was irrelevant because the element of the

crime is whether force, violence, or intimidation was used

to commit the robbery. Moreover, the existence of the

gun and its relationship to Loggins were already part of

the evidence. Thus, the prosecutor’s comments did not

implicate the core issue of Loggins’s guilt or innocence.

Instead, this argument suggested that Loggins had a

larger and more cognizant role in the robbery. With or

without the arguments, the elements of the charged

crime would still be satisfied.

Nor did the prosecution misstate the admitted evidence.

The evidence supported the prosecution’s argument that

the real gun was used during the commission of the

offense. Reynolds testified that Loggins helped plan the

robbery by showing the gun to Johnson and instructing

him to carry it. Moreover, Agent Grodsinsky testified that

Loggins admitted that she was aware the robbery would

take place. In fact, Loggins invited the prosecution’s

comment on which gun was actually used. In her closing,

Loggins stressed her theory that Reynolds lied because

the toy gun was used during the robbery rather than

Loggins’s revolver. However, an equally permissible

inference from the admitted evidence was that Loggins

revolver was used.

1

The jury was instructed: “To sustain the charge of a bank

robbery, the government must prove the following beyond a

reasonable doubt: First, the defendant took from the person or

presence of another money belonging to or in the care, custody,

control, management or possession of the Illiana Financial Credit

Union; Second, at the time charged in the indictment the

Illiana Financial Credit Union had its deposits insured by the

National Credit Union Administration; and Third, the defendant

acted to take such money by force and violence, or by means of

intimidation.”

No. 06-1535 11

The evidence supporting Loggins’s conviction was

overwhelming. Through her own admission, Loggins stated

that she knew her co-defendants had robbed the credit

union when they came running from the credit union and

jumped into her car. Irrespective of her prior knowledge,

Loggins knowingly drove away from the credit union as a

full participant in the robbery. Although the dye pack

exploded inside her car and she was being actively pur-

sued, Loggins drove down local streets and a frontage road

along the expressway before plowing through the gate of

a condominium complex. It is well established that escape

is considered part of a robbery. United States v. Andrews,

442 F.3d 996, 1002 (7th Cir. 2006); United States v. Smith,

415 F.3d 682, 689 (7th Cir. 2005).

Our examination of the record as a whole leads us to

conclude that Loggins was not denied due process. Any

prejudicial impact of the prosecution’s rebuttal argument

was insignificant in light of the tremendous weight of the

evidence against her. Therefore, the defendant was not

denied due process, and the district court did not err in

refusing to grant Loggins’s motion for a new trial.

III. Conclusion

Accordingly, the judgment of the district court is

AFFIRMED.

ROVNER, Circuit Judge, concurring. I join the court’s

opinion. I write separately to express my concern about

the government’s last-minute change in theory as to

which gun was used to commit the robbery.

12 No. 06-1535

Loggins’ theory of defense was that she did not know in

advance of her co-defendants’ plan to rob the credit union

and that she drove the car away from the credit union in

a panic. Her odds of prevailing on this defense were not

especially strong, given that participating in an escape

from a robbery is considered participating in the robbery

itself, see United States v. Smith, 415 F.3d 682, 689 (7th

Cir. 2005) (coll. cases), vacated & remanded on other

grounds, — U.S. —, 126 S. Ct. 2859 (2006), and by

Loggins’ own admission she realized what her co-defen-

dants had done when they ran out of the credit union and

jumped into the car with a bag full of money. R. 156-3 at

408, 471. Still, there is an intuitive difference between

someone who knows about a robbery plan ahead of time

and volunteers for the role of getaway driver and someone

who remains in the dark until her co-defendants dash out

of the bank, pile into the car, and scream at her to drive

away. A sympathetic jury confronted with the second

scenario might agree that the driver’s heat-of-the-moment

decision to step on the gas and get the heck out of Dodge

was not a deliberate and culpable decision to aid the

robbery.1

Use of a real gun was not an element of the offense, as

my colleagues point out, but as a practical matter it was

quite relevant to Loggins’ defense. If it was Loggins’ Smith

1

Getaway drivers occasionally do succeed on such defenses. See,

e.g., Briefs, Stuart: 20-year-old cleared of getaway charges, Stuart

(Fla.) News, June 16, 2006, at Local News, 2006 WLNR

10585962; Madelaine Vitale, Split Verdict in Shootout Killing

of Atlantic City Bar Manager, Press of Atlantic City (N.J.), Feb.

25, 2006, at C1, 2006 WLNR 3340080; Sara Eaton, Alleged *01

getaway driver cleared; Wendy’s employee was shot during pair

of robberies, Fort Wayne (Ind.) Journal Gazette, at 1, 2004 WLNR

15243884.

No. 06-1535 13

& Wesson that Johnson held in his hand during the

robbery, then it was a more obvious inference that Loggins

was in on the plan from the start; indeed, it would con-

firm Reynolds’ testimony that Loggins had participated

in the discussion of the robbery the night before and had

advised Johnson to use her gun in the robbery, see R. 156-1

at 108, 121. This would in turn rule out the possibility

that Loggins found out about the robbery only after the

fact and drove her cohorts away from the scene of the

crime in a panic. Ante at 9.

I readily agree with my colleagues that the evidence

before the jury supported the prosecutor’s contention that

Loggins’ gun was used to commit the robbery. Ante at 10.

Although none of the witnesses to the robbery were

asked to identity the gun they saw in co-defendant John-

son’s hand, in addition to Reynolds’ testimony that Loggins

had shown her revolver to Johnson and told him to carry

it, there was testimony from the credit union tellers

describing the gun Johnson was carrying as being big

and silver. Having looked at the guns myself, I am satis-

fied that only Loggins’ Smith & Wesson truly meets that

description; the plastic toy guns are smaller and have a

distinctive blue-green cast to them (although they do have

a somewhat metallic sheen).

What is troubling about the government’s conten-

tion—voiced for the first time in its rebuttal argument—

that it was Loggins’ gun that was used, is that this

was wholly contrary to the position that the government

had taken—repeatedly, on the record, and in the presence

of the district judge—right up to the eve of trial. When

Love pleaded guilty to the May 28 robbery on May 3, 2005,

four months before Loggins’ trial, the Assistant United

States Attorney (“AUSA”) represented to the court that

the government’s evidence would show that “[d]uring the

course of the robbery, [c]o-[d]efendant Johnson pointed a

toy handgun at bank employees and customers while

14 No. 06-1535

instructing them to put their hands up.” R. 170 at 13-14.

The district judge took note of the prosecutor’s descrip-

tion of the gun as a toy and asked her what evidence she

had to support that description. Id. at 17. The AUSA

informed the court that two toy guns had been recovered

from inside the getaway car, “[a]nd when compared to the

bank surveillance photos and what [the] tellers described,

those seemed to match the guns that were used in both

robberies. And we believe it was a toy gun used in both

the May 22nd robbery and the May 28th robbery.” Id. at

18. The government made the same representation in its

proffer of the evidence against Johnson (who pleaded

guilty the same day as Love): the AUSA indicated that

“[d]uring the course of the robbery, . . . [d]efendant John-

son . . . pointed a toy handgun at bank employees and

customers while instructing them to put their hands up.”

Id. at 50.2 Love and Johnson themselves specifically

represented to the court in their plea colloquies that the

guns they had carried were toy guns (although Love could

not recall what type of gun Johnson had carried). Id. at 21-

22, 52. On September 1, 2005, just days before the start

of Loggins’ trial, co-defendant Reynolds pleaded guilty.

Again the government, in outlining its evidence, indicated

that “during the course of the robbery, co-defendant

Johnson pointed a toy handgun at bank employees and

customers while instructing them to put their hands up.”

R. 134 App. B at 4. Finally, on September 6, 2005, when

the government asked for (and received) a delay in the

start of Loggins’ trial because neither the toy guns nor

2

The government made the same representation in the official

version of the offense that it submitted to the probation office

on May 19, 2005, for use in preparation of Johnson’s pre-sentence

report. R. 134 App. C at 4 (“During the course of the robbery,

defendant [Johnson] pointed a toy handgun at bank employees

and customers while instructing them to put their hands up.”).

No. 06-1535 15

Loggins’ Smith & Wesson revolver could be located in the

evidence locker, the AUSA specifically advised the court

that the toy guns looked very much like the real gun

(Loggins’ revolver). R. 173 at 5. “If you laid them side by

side without picking them up, they would look almost

identical in appearance.” Id. Again the court expressed

interest in which of the guns was used to commit the

robbery, and although on this occasion the government

did not repeat its earlier refrain that Johnson had pointed

a toy gun at the tellers and customers of the credit re-

union, it did disavow any intent to show that Loggins’ gun

had been used to commit the robbery:

THE COURT: Once this issue of the guns is resolved,

then what inferences is the Court to draw with respect

to the three guns, two apparently toy guns and one

real gun?

AUSA: . . . The inference regarding the guns would

be that there were three guns used. We can’t tell the

jury which guns were used inside of the May 28

robbery. All we can say is that three guns were found,

and that the defendant had the only real gun on her

person.

Id. at 25.

What the record does not reflect but what we have been

told is that once the FBI tracked down the Smith &

Wesson and the prosecutor apparently got her first side-

by-side look at the three guns just a day or two before the

trial commenced, she concluded that the toy guns were

readily distinguishable from the real gun and that it

likely was Loggins’ gun—the Smith & Wesson—that

Johnson had used to carry out the May 28 robbery. We do

not know whether the tellers themselves would have been

able to identify the Smith & Wesson as the gun that

Johnson had pointed at them, since none of them was

asked to do so at trial. (And I would add that the one

16 No. 06-1535

perspective from which it is difficult to distinguish the

real gun from the toy guns is when one looks directly

into the barrels of the guns—i.e., when they are pointed

directly at an individual.) But in any event, the govern-

ment changed its theory as to which gun Johnson had

used, and as I have already acknowledged, the notion

that Johnson had carried Loggins’ gun into the bank

was a plausible one based on the trial evidence, which

included the guns themselves, the tellers’ testimony

about what the gun that Johnson carried looked like, and

Reynolds’ testimony that Loggins had urged Johnson to

carry her gun with him. I agree with my colleagues

that the government was entitled to make this argument

to the jury. See ante at 10.

What I do not think the government was within its

rights to do, given the position it had repeatedly taken on

the guns prior to trial, was keep quiet about its change of

theory until the evidence was closed and the defense

counsel had given his closing argument. A defense by

its nature is reactive; because it is the government that

bears the burden of proof, the defense must respond to

what evidence the prosecution puts on and what inferences

it asks the jury to draw from that evidence. In the ab-

stract, of course, the prosecutor may have had no obliga-

tion to share with the court and with the defense her

thoughts as to which of the guns Johnson had used: as

discussed, this was much more material to the defense

case than it was to the government’s. But not only had

the government previewed its theory regarding the guns

before trial, it had in the course of three separate change-

of-plea hearings repeatedly represented to the court as

fact that Johnson had used a toy gun—not Loggins’ Smith

& Wesson—in the course of the robbery, and as late as

a few days before Loggins’ trial was representing to the

court that it could not prove which of the guns was used

inside the credit union. Nothing new or unexpected

No. 06-1535 17

emerged at trial in regard to the guns: no witness identi-

fied the Smith & Wesson as the gun Johnson had pointed

at the tellers and customers of the credit union, for

example. Under these circumstances, the defense had no

reason to anticipate the about-face that the government

performed in its final closing argument.

The government suggests that the defense brought

this on itself when Loggins’ counsel argued in his own

closing statement that Johnson had used a toy gun rather

than Loggins’ Smith & Wesson to commit the robbery, thus

“mak[ing] . . . an issue” of which gun was used. Gov’t Br.

at 39; see also ante at 10. This is revisionist history. The

government gift-wrapped this argument for the defense

when its own counsel repeatedly represented to the

court in advance of trial that Johnson had used a toy

gun and that it could not prove otherwise. That Loggins’

attorney would take up that refrain could have sur-

prised no one: it was part and parcel of the defense theory

that Loggins took no part in planning the robbery and had

no foreknowledge of it—a theory that was consistently

advanced throughout the case. See, e.g., R. 173 at 10-11

(Loggins’ counsel outlines theory of defense at hearing

conducted the week before trial commenced). The problem

here was one of the government’s making, not Loggins’.

By keeping its change of mind about the guns under

wraps until its final closing argument, the government

effectively deprived Loggins of the chance to respond. Just

as there was evidence to support the government’s

eleventh-hour contention that Johnson had used Loggins’

gun, there was evidence to support Loggins’ contrary

theory that he had not. During Johnson’s plea colloquy,

for example, Johnson had read aloud (and swore to the

truth of) a signed written statement concerning the

May 28 robbery in which he stated that he “displayed a toy

gun” during the robbery. R. 170 at 52. Moreover, an FBI

forensic expert had prepared a report indicating that, on

18 No. 06-1535

review of credit union surveillance photographs, he was

unable to determine whether the weapon Johnson held

in his hand during the robbery was Loggins’ revolver or

one of the toy guns (because the photographs were insuf-

ficiently detailed). R. 134 App. D. Finally, the fact that

the prosecutor did not ask any of the tellers whether

they could identify which of the guns Johnson had used

suggests it is at least possible that they too might be

unable to do so. (Although the differences between the

guns seemed rather obvious to me within the sedate

confines of my chambers, I can readily appreciate how a

witness who had only a moment’s glimpse of the gun under

highly stressful conditions might be less able to state

with confidence which of the guns he or she saw in John-

son’s hand.) Of course, Loggins could have sought to

introduce this evidence during trial; nothing precluded

her from doing that. But she had no reason to do so

after the government effectively took that issue off the

table by conceding that Johnson had used a toy gun and

professing its inability to prove that Johnson had used

Loggins’ gun. By the time the prosecutor finally put that

issue back on the table, the evidence was closed and the

defense’s opportunity to speak to the jury had come and

gone.

As a former prosecutor and district judge, I know that

in preparation for trial, opposing parties and judges alike

routinely rely on the representations that the parties’

counsel make as to what issues and theories they will and

will not pursue. This is not to say that a party is forever

after bound by whatever pre-trial positions its counsel

might take. Things rarely proceed according to plan: new

evidence comes to light, witnesses give unexpected testi-

mony, mistakes become apparent, strategies change.

Although the government’s counsel can perhaps be faulted

for not arranging to see the guns further in advance of

trial than she did (we are told that Loggins’ counsel, by

No. 06-1535 19

contrast, had viewed the guns months earlier), once she

examined the guns and realized that the weapon wit-

nesses had described as large and silver most likely

was Loggins’ Smith & Wesson, I believe she was entitled

to argue that theory. But given the government’s prior on-

the-record assertions that Johnson had used a toy gun,

I believe the AUSA was obligated to disclose her change of

thought to both the court and the defense. Not to do so,

and to reserve that announcement for the last moments

of trial, was a serious error in judgment. Trial by ambush

has absolutely nothing to recommend itself to the judi-

cial process.

The question before us, however, is whether Loggins

is entitled to be re-tried, and given the substantial defer-

ence we owe to the district court on this question, e.g.,

United States v. Woolfolk, 197 F.3d 900, 904-05 (7th Cir.

1999), I cannot say that it was an abuse of discretion to

deny Loggins’ Rule 33 motion for a new trial. The govern-

ment’s rebuttal argument, although a surprise to the

defense, was consistent with the appearance of the guns

and with the tellers’ descriptions of the gun that Johnson

had used. My sense is that the jury would have drawn

the same inference on its own even if the government

had not made the argument or if the defense, not having

been lulled into a sense of false security by the govern-

ment’s pre-trial statements on this subject, had intro-

duced evidence suggesting that Johnson used (or may

have used) a toy gun. Moreover, apart from Loggins’ gun,

there was substantial evidence indicating that Loggins

knew ahead of time that her co-defendants were planning

to rob the credit union. Reynolds so testified, of course.

Perhaps more importantly FBI Special Agent Gustavo

Grodsinsky testified that following her arrest, Loggins

admitted to him that she had overheard Johnson and Love

discussing the robbery the night before (although she

thought this was just idle chatter), R. 156-3 at 502, that on

20 No. 06-1535

the morning of the robbery Johnson and Love had awak-

ened her and told her “they were going to get the money,”

id. at 503, and that she continued to think they were

joking “except for when they told her to get dressed because

she[ ] [was] the only person that ha[d] a vehicle and they

needed her to drive,” id. (emphasis mine). Loggins told

Grodsinsky that after getting dressed, she drove her co-

defendants around town looking at different banks until

they settled on the Illiana Financial Credit Union, which

Johnson and Love said “looked like a good one.” Id. at 504.

Moreover, Loggins’ own written statement (which

Grodsinsky read aloud to the jury), although insisting that

she had at first believed her co-defendants’ talk of a

robbery to be a joke, acknowledged that once her co-

defendants got out of the car and proceeded into the bank,

she realized they were not joking. R. 156-4 at 537. At the

very least, this evidence suggests that Loggins did not

remain in the dark about the robbery as long as her

defense posited, and that her decision to drive the getaway

car was not truly made in the panic of the chaotic moments

after the robbery. Against that backdrop, I am not con-

vinced that the government’s unexpected argument that

Loggins’ gun was used to commit the robbery ultimately

made a difference to the outcome of the trial or otherwise

affected Loggins’ substantial rights. See generally United

States v. Kuzniar, 881 F.2d 466, 470 (7th Cir. 1989);

United States v. Reed, 875 F.2d 107, 113 (7th Cir. 1989)

(quoting United States v. Martinez, 763 F.2d 1297, 1312-13

(11th Cir. 1985)).

With these additional observations, I join the court’s

opinion and judgment.

No. 06-1535 21

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—5-9-07