In the

United States Court of Appeals

For the Seventh Circuit ____________

Nos. 05-2433 & 05-2703

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

CHARLES ROSS and DEREK WILSON,

Defendants-Appellants.

____________

Appeals from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 03 CR 822—Amy J. St. Eve, Judge.

____________

ARGUED FEBRUARY 9, 2007—DECIDED DECEMBER 14, 2007

____________

Before BAUER, FLAUM, and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge. A jury convicted Charles

Ross and Derek Wilson of robbing a postal truck docked

at the Grand Crossing Post Office Annex in Chicago,

Illinois (“Post Office”). Wilson had conspired to rob the

Post Office on two earlier occasions, and he finally decided

to put his words into action. Wilson, a postal employee,

used his inside knowledge of the Post Office to facilitate

the robbery and acted as getaway driver. Ross was the

gunman during the robbery, and five months after the

robbery, he was still in possession of small-caliber bullets.

Ross also confessed his role in the offense to postal inspectors.
2 Nos. 05-2433 & 05-2703

On appeal, Ross argues that his confession should have

been suppressed as it was the product of coercion, that

he was prejudiced by the joinder of his felon-in-possession

of ammunition charge with counts related to the robbery,

and contends that he should not have been tried with

Wilson. We reject each of Ross’s arguments, finding that

his confession was voluntary and that he was not prejudiced by the joinder of the counts or of Wilson. Finally,

Ross interjects a new argument on appeal: that events

before trial should have prompted the court to request

an evaluation of his competence. However, the district

court had no reason to doubt Ross’s capacity to consult

with his attorney or to understand the charges against

him.

Wilson’s only claim on appeal is that the district court

should not have admitted evidence of earlier conspiracies

to rob the Post Office. Because the evidence was admissible under Federal Rule of Evidence 404(b), we affirm the

judgment of the district court.

I. BACKGROUND

On August 8, 2003, while two employees loaded the Post

Office’s daily remittances onto a postal truck, two men

slipped into the space between the dock and the truck.

As one man pointed a gun at the employee aboard the

truck, the second employee fled. While the gunman kept

his gun trained on the remaining employee, the other man

boarded the truck and removed two bags of cash and

checks from a sealed cage. The pair then joined their

awaiting getaway car driver, making off with over $18,000

in cash and checks.

Fingerprints found at the scene matched those of

Richard Johnston, and the driver of the postal truck

identified Johnston in a physical line-up. After being
Nos. 05-2433 & 05-2703 3

indicted for the robbery, Johnston admitted his role,

identified the gunman as “Chuck,” and described the

apartment complex where “Chuck” lived. During the next

four months, postal inspectors learned that “Chuck” was

Charles Ross and obtained a warrant to search Ross’s

home.

Seven armed postal inspectors entered Ross’s home

early in the morning on January 12, 2004, to execute the

search warrant. After knocking and announcing their

presence, inspectors forced open Ross’s door to find Ross,

dressed in a tank top and boxer shorts, standing in his

unlit apartment. As several inspectors secured Ross’s

residence, Postal Inspector John Donnelly pointed his

MP5 submachine gun at Ross and told him to leave the

apartment and lie face down in the hallway. Donnelly

continued to point the submachine gun at Ross as he lay

on the ground. After the apartment was secured, inspectors handcuffed Ross, helped him to his feet, and checked

him for weapons. Relieved of the responsibility of guarding Ross, Donnelly entered the apartment and began

searching Ross’s bedroom. Inspectors Joselito Rocamora

and Sylvia Carrier then escorted Ross into his living

room, removed his handcuffs, gave him his Miranda

warnings, allowed him to put on a pair of pants, and began

questioning him about the robbery.

Although Ross initially denied involvement in the

robbery, after ten to fifteen minutes of questioning, he

confessed to committing the robbery with men named

Ricky and Derek. Specifically, Ross admitted that he

and his confederates had robbed two postal employees

at the Grand Crossing Post Office of approximately

$15,000 and that he had pointed an unloaded gun at

the employees. Ross said he had since discarded the gun,

and, when asked about fourteen .25-caliber and seventeen

.22-caliber bullets discovered in the search of his bedroom, Ross claimed to have found them in a dumpster. At
4 Nos. 05-2433 & 05-2703

some point during the five-hour interview, Ross asked to

speak with someone about receiving a reduced sentence

for cooperation. In response, inspectors permitted Ross

to speak by phone with an Assistant United States Attorney and Ross agreed to cooperate in the inspectors’

investigation.

The following day, while wearing a wire, Ross went to

the Post Office to speak with Derek Wilson, Johnston’s

cousin and a Post Office employee, about the robbery.

Ross told Wilson that police had been to his home asking

about “Ricky,” and that he was nervous and wanted to

know why police had come to suspect him. Ross asked

Wilson what had become of the post office bags, and

Wilson responded that the bags had “disappeared” and

could not have caused the police’s suspicion. Wilson

reassured Ross that he knew nothing, had heard nothing,

and had not spoken to a soul. After suggesting that Ross

speak to a mutual friend about the matter, Wilson ended

the conversation because he thought it unwise to speak on

post office grounds. Some time later, Wilson was arrested.

On December 14, 2004, the government returned a

second superseding indictment against Ross and Wilson

(having already pled guilty, Johnston was not named

in the indictment). In Count One, Ross and Wilson were

charged with conspiracy to commit an offense against

the United States in violation of 18 U.S.C. § 371. Count

Two charged them with robbing persons having custody

of United States property under 18 U.S.C. § 2114(a). In

Counts Three and Four, Ross was charged with knowingly possessing a firearm in furtherance of a crime of

violence, in violation of 18 U.S.C. § 924(c)(1)(A), and

unlawful possession of ammunition by a convicted felon,

a violation of 18 U.S.C. § 922(g)(1).

Before trial, Ross moved to suppress his confession as

being coerced. After holding a suppression hearing at
Nos. 05-2433 & 05-2703 5

which Ross, his son, his neighbor, and Inspectors Donnelly

and Rocamora testified, the district court denied the

motion to suppress, finding that Ross’s account of coercion

was not credible. Ross also moved to sever the felon-inpossession of ammunition count (Count Four) from the

remaining counts of the indictment and to sever his case

from Wilson’s. These motions were also denied.

The government submitted a motion in limine requesting permission to introduce testimony regarding Wilson

and Johnston’s conspiracies to rob the Post Office in 1997

and 1998. The government argued that the prior conspiracies were intricately related to the charged offense and

also admissible under Federal Rule of Evidence 404(b). The

district court accepted both theories of admissibility

and granted the motion.

Ross and Wilson were tried together, and Johnston was

the key witness against both. Johnston testified that

when he was unemployed in 1997, he asked Wilson’s

advice on making money. Wilson told him that the Post

Office where he worked shipped large sums of money on a

daily basis, that Friday was the best day to rob the Post

Office, and that Johnston would need scissors to break

into a cage where the money was stored. With Wilson

acting as his getaway driver, in June 1997, Johnston stole

more than $9,000 from the Post Office. The two tried again

in May 1998, but were unsuccessful. On this occasion,

Johnston had to board a postal truck and confront its

driver to recover the money. Before Johnston could flee

with the cash, the truck driver sprayed him with mace,

and Johnston fled.

When Johnston expressed interest in robbing the Post

Office in 2003, Wilson again offered inside information.

Friday was still the best day to strike; the day’s receipts

were now stored in an annex across from the Post Office’s

main building; and two postal employees now transferred
6 Nos. 05-2433 & 05-2703

the money to the postal truck. Since he would have to

confront two employees in carrying out this robbery,

Johnston decided to recruit a friend to assist. He asked

Charles Ross, a recent acquaintance, to take part in the

robbery and to be his getaway driver, and Ross agreed.

Ross added that he would bring a gun. Because Ross’s car

was getting repaired on August 8, 2003, Wilson agreed to

again act as the driver at Johnston’s request. Johnston

testified that he and Ross confronted two postal employees, that Ross pointed his gun at both gentlemen, and

that Johnston cut the seal of a cage containing the bags

of money and removed two mail bags. Johnston, Ross

and Wilson then drove back to Ross’s apartment where

they split the money three ways. Johnston was arrested

a few weeks later.

In addition, Inspector Rocamora testified about Ross’s

confession on the morning of the search. An agent with the

Bureau of Alcohol, Tobacco, Firearms and Explosives

testified that the ammunition found in Ross’s apartment

had traveled in interstate commerce. The government

introduced Wilson’s post office personnel files and telephone and bank records. Ross stipulated to having a

prior felony conviction and did not put on any evidence.

Wilson called five witnesses to testify as to his whereabouts at the time of the robbery and his character.

The jury convicted Ross and Wilson on their respective

counts, and both defendants moved for a judgment of

acquittal or a new trial. Their requests were denied, and

the district court sentenced Ross to 108 months’ incarceration on Counts One, Two, and Four, and a consecutive

eighty-four month sentence on Count Three. Wilson

received one-hundred month concurrent sentences on

his two counts. Both defendants now appeal.
Nos. 05-2433 & 05-2703 7

II. ANALYSIS

A. The Admission of Ross’s Confession Was Proper

Ross argues that his confession was coerced and should

have been suppressed. In reviewing a district court’s

decision on a motion to suppress, we review factual

findings for clear error and legal conclusions de novo.

United States v. Burks, 490 F.3d 563, 565 (7th Cir. 2007).

At the outset, Ross attacks the court’s factual findings,

arguing that the court clearly erred in crediting the

postal inspectors’ accounts. This is an uphill climb,

because we give special deference to the district court,

who heard testimony and observed witnesses, on factual

matters. See United States v. Johnson, 383 F.3d 538, 542

(7th Cir. 2004). We will reverse only if “we are left with

the definite and firm conviction that a mistake has been

made”, as when a court has credited “exceedingly improbable” testimony. Burks, 490 F.3d at 565. We begin by

reviewing the testimony.

Inspector Donnelly was the first to testify at the suppression hearing. He testified that he performed two

functions during the search of Ross’s home. He carried an

MP5 submachine gun and, once the apartment was

secured, assisted in the search. According to Donnelly,

approximately seven armed officers proceeded to Ross’s

door at about 6:20 a.m. on January 12, 2004. After knocking and announcing that they had a warrant to search

Ross’s home, the inspectors used a sledgehammer to

gain entry into Ross’s home. The door swung open revealing Ross standing inside the dark apartment in boxer

shorts and a tank top. Donnelly said he then pointed the

submachine gun at Ross and instructed him to exit the

apartment and lie down on the hallway floor. Donnelly

denied slamming Ross against the wall or even touching

Ross during this encounter. After Ross complied with

Donnelly’s instructions, the other inspectors rushed into
8 Nos. 05-2433 & 05-2703

the apartment to verify that no one else was inside.

Donnelly says that during that brief interval he stayed

outside with his gun pointed at Ross and always kept

a distance of five feet from the suspect. Once the inspectors “cleared” the apartment, an inspector handcuffed

Ross and performed a pat-down. Inspectors Rocamora

and Carrier then escorted Ross to the living room and

Donnelly proceeded to the bedroom to assist in the search.

Inspectors found fourteen .25-caliber bullets and seventeen .22-caliber bullets in Ross’s bedroom. Donnelly

remembered seeing Ross again when he tossed a pair of

Ross’s pants out of the bedroom for Ross to wear. He

thought that was “probably” the only other time he saw

Ross in the apartment.

Inspector Rocamora, the supervising agent during the

search, also testified at the hearing. Although Rocamora

was excluded from the courtroom while Donnelly testified,

the inspectors’ testimony interlocked to a substantial

degree. Rocamora testified that inspectors announced

themselves at Ross’s home at 6:25 or 6:30 a.m. After

Ross exited the home, Rocamora said the apartment was

checked for confederates and Ross was allowed back into

the home. Rocamora stated that he removed Ross’s handcuffs and read Ross his Miranda warnings before beginning the interview. Consistent with Donnelly’s testimony,

Rocamora testified that Ross was allowed to get dressed

before the interview and that one of the inspectors

showed Ross the search warrant. Rocamora recalled that

Ross’s interview began twenty-five to thirty minutes

after entry into the apartment. According to Rocamora,

Ross initially denied any involvement in the robbery,

but within ten to fifteen minutes, he admitted to committing robbery with individuals named Ricky and Derek.

Rocamora testified that no one placed a gun to Ross’s head

during the interview or even yelled or swore at him.

Rocamora said Ross was given cigarettes, coffee, and chips
Nos. 05-2433 & 05-2703 9

during the five-hour interview. At the close of the interview, Ross agreed to cooperate in the apprehension of the

third conspirator by wearing a wire.

Ross told a very different story. According to Ross, the

inspectors knocked at his door between 4:30 and 5:00 a.m.,

outside the time authorized in the warrant. He testified

that one inspector snatched him out of the apartment,

slammed him against the wall, and told him to get down

on his knees and to shut up. At that point, an officer put

a “rifle” to the back of his head. Ross said he repeatedly

asked to see a search warrant, that the officers never

showed him a warrant, and that the officers said “F it. We

don’t need it. Search it, anyway.” Ross then said the

inspectors asked him to sign a form giving consent to

search and that he refused. As for the interview, Ross

said he initially denied any involvement in the robbery,

and only confessed when Inspector Donnelly came rushing from the bedroom saying “You’re gonna stop—you’re

gonna stop—F’ing lying,” and placed a gun to his head.

Ross testified that Rocamora became upset with Donnelly

and excluded him from the apartment. Even so, Ross

said, he was so nervous that he confessed and later agreed

to wear the wire only because he had already crossed

the line into assisting the inspectors. The defendant

called his son and a neighbor to testify at the suppression

hearing. Both testified that the inspectors began the

search before 5:00 a.m., but did not otherwise corroborate

the defendant’s account of events.

Ross says several purported discrepancies in the inspectors’ testimony should have led the court to credit his

testimony. For one, he notes that Donnelly testified that

the inspectors began “conversing” with Ross ten minutes

after breaking down Ross’s door, but Rocamora testified

the interview began twenty-five to thirty minutes after

entry. This does not amount to a clear inconsistency

because the inspectors may have conversed with Ross
10 Nos. 05-2433 & 05-2703

before commencing a formal interview. To the extent there

is an inconsistency, it can be attributed to the excitement of the circumstances and memory loss. And importantly, both inspectors agree as to what occurred during

the moments leading up to the interview, even if they

disagree on the precise timing of those events. Any discrepancy regarding the timing of the interview is minor

and does not render the inspectors’ testimony exceedingly

improbable. See United States v. Jensen, 169 F.3d 1044,

1047 (7th Cir. 1999) (disagreement between two officers

as to when a conversation occurred did not make their

testimony exceedingly improbable); United States v.

Yusuff, 96 F.3d 982, 986 (7th Cir. 1996) (“[M]inor inconsistencies in the police testimony do not undermine

their credibility in any significant fashion.”).

Ross exaggerates other alleged inconsistencies. For

instance, he says Donnelly claimed that he did not remember who placed the handcuffs on Ross and that he did not

recall seeing Ross anytime after tossing a pair of pants

into the living room. Ross says these statements are

exceedingly improbable because: (1) Donnelly was guarding Ross at close range at the time Ross was handcuffed,

and (2) Donnelly had to have passed Ross to exit the

apartment upon completion of the bedroom search. Ross’s

arguments are unconvincing because he misrepresents

Donnelly’s testimony. Donnelly testified that he was

almost certain that Postal Inspector Zielke placed the

handcuffs on Ross, and Donnelly testified that Ross “might

have been” in the living room when Donnelly left the

apartment.

Finally, Ross claims it is equally incredible that Donnelly

never touched him and remained five feet away from

him during the excited, fast-paced entry. But nothing

about Donnelly’s account is inherently unbelievable.

Rather, it is Ross’s version that strains imagination.

During the course of four meetings with prosecutors
Nos. 05-2433 & 05-2703 11

before trial, Ross never mentioned being threatened at

gunpoint or coerced into confessing. We also think it

unlikely that Ross was threatened into confessing on one

day and contentedly cooperated with police on the next.

The district court did not clearly err in accepting the

inspectors’ version of events.

So Ross is left to argue that the conditions of his interview, as recounted by Inspectors Donnelly and Rocamora,

were coercive. He contends that the totality of the

circumstances—the fact that there were six to seven

armed postal inspectors in his apartment at the time of

his confession and that he was “greeted” with a submachine gun minutes before the questioning began—renders

his confession involuntary. We review the district court’s

conclusion on this question de novo. Burks, 490 F.3d at

565. “A confession is voluntary if, in the totality of

the circumstances, it is the product of a rational intellect

and free will and not the result of physical abuse, psychological intimidation, or deceptive interrogation tactics

that have overcome the defendant’s free will.” United

States v. Huerta, 239 F.3d 865, 871 (7th Cir. 2001) (internal quotation marks and citations omitted). Among the

factors relevant in determining whether a confession

was coerced are: the defendant’s age, intelligence, education, mental state; whether he was given his Miranda

rights; the duration and environment of the interrogation, including the suspect’s access to the restroom and

food during the interrogation; and the conduct of law

enforcement. Conner v. McBride, 375 F.3d 643, 651 (7th

Cir. 2004).

Based on the totality of the circumstances, we find that

Ross’s confession was voluntary. Ross was over fifty

years old at the time of his interrogation and had significant experience with the criminal justice system because

of his prior convictions. Although several armed inspectors

were moving around his apartment at the time of his
12 Nos. 05-2433 & 05-2703

1 A defendant need not renew a Rule 8 motion at the close of the

evidence to preserve the argument for appeal. See United States

v. Terry, 911 F.2d 272, 277 (9th Cir. 1990). “Because the propriety of a Rule 8 joinder is determined solely by the initial allegations of the indictment, there is no need to assess what actually

(continued...)

confession, only two inspectors interviewed him at any

given time, and he was given his Miranda warnings. Additionally, when Ross gave his confession, he

was sitting in his own apartment, fully clothed, and not

handcuffed, and he had been provided food and drink. The

entire interview lasted five hours but Ross’s confession

came within ten to fifteen minutes after inspectors initiated questioning; so he cannot argue he was worn down

before he confessed. This is not a circumstance where a

defendant contends his will was so overborne that he

confessed to a crime he did not commit. Indeed, at the

suppression hearing, Ross admitted his guilt. Except for

Ross’s contention that Donnelly held a gun to his head,

which the district court found unbelievable, there is no

evidence of intimidation. The district court did not err

in admitting Ross’s confession.

B. Ross Was Not Prejudiced By the Joinder of All

Counts

Ross contends that the felon-in-possession count (Count

Four) should not have been tried with the other counts

of the indictment. He argues that the joinder of counts

was improper under Rule 8(a) of the Federal Rules of

Criminal Procedure, and that, even if joinder was proper,

the court should have granted his Rule 14 motion to

sever to ensure a fair trial. On appeal, we review a claim

of misjoinder de novo,1

 and the denial of a motion to
Nos. 05-2433 & 05-2703 13

(...continued)

happened in the trial.” Id.

2 We have previously said that “[w]hen two or more defendants

are charged in a single indictment, Rule 8(b) governs joinder of

defendants and offenses.” United States v. Cyprian, 23 F.3d 1189,

1193 (7th Cir. 1994); see United States v. Alvarez, 860 F.2d 801,

823 (7th Cir. 1988); United States v. Moya-Gomez, 860 F.2d 706,

766 (7th Cir. 1988); United States v. Velasquez, 772 F.2d 1348,

1353 (7th Cir. 1985); see also United States v. Carson, 455 F.3d

336, 374 n.34 (D.C. Cir. 2006); United States v. Irizarry, 341 F.3d

273, 287 (3d Cir. 2003); United States v. Jones, 880 F.2d 55, 60-61

(8th Cir. 1989); United States v. Turoff, 853 F.2d 1037, 1043 (2d

Cir. 1988); United States v. Levine, 546 F.2d 658, 661 (5th Cir.

1977); 24 Moore’s Federal Practice § 608.03[2] (3d ed. 2007); 4 W.

LaFave, J. Israel, & N. King, Criminal Procedure § 17.2(a)

(1999); cf. United States v. Lane, 474 U.S. 438, 444-446 (1986)

(evaluating claim that charges were misjoined in a multidefendant trial under Rule 8(b)). However, we have not always

applied that principle consistently, see United States v. Lanas,

324 F.3d 894, 899-900 (7th Cir. 2003) (analyzing joinder of

offenses against in a multi-defendant trial under Rule 8(a)), and

some courts have challenged the traditional view that in

(continued...)

sever for an abuse of discretion. See United States v.

Warner, 498 F.3d 666, 699, 700 (7th Cir. 2007).

We begin with Ross’s argument that the counts were

misjoined under Rule 8(a). Rule 8(a) permits the joinder of

offenses that are: (1) of the same or similar character;

(2) based on the same act or transaction; or (3) connected

with or part of a common scheme or plan. Fed. R. Crim. P

8(a). The government contends the felon-in-possession

count is of the “same or similar character” as the armed

robbery and use of a firearm in a crime of violence

counts because all three are “firearms offenses.” We need

not resolve this question, or even whether Rule 8(a)

applies in this multi-defendant case,2

 because Ross could
14 Nos. 05-2433 & 05-2703

(...continued)

multi-defendant cases, Rule 8(b) governs the joinder of offenses.

See United States v. Frost, 125 F.3d 346, 389 (6th Cir. 1997);

United States v. Southwest Bus Sales, Inc., 20 F.3d 1449, 1454

(8th Cir. 1994); United States v. Eufrasio, 935 F.2d 553, 570 n. 20

(3d Cir. 1991); see also 1A Charles Alan Wright, Fed. Practice

& Procedure § 144 (3d ed. 1999).

never show prejudice. See United States v. Lane, 474 U.S.

438, 449 (1986) (“[W]e hold that an error involving misjoinder ‘affects substantial rights’ and requires reversal

only if the misjoinder results in actual prejudice because

it ‘had substantial and injurious effect or influence in

determining the jury’s verdict.’ ”).

The evidence of Ross’s involvement in the robbery

was simply overwhelming, so we are confident that the

jury did not convict him on the robbery counts purely

because of his status as a felon. Inspector Rocamora

testified to Ross’s confession. The jury heard Ross implicate himself during the tape recorded conversation with

Wilson. In that conversation, Ross referred to himself,

Wilson, and Johnston, acknowledging that the three

were acquainted. He also asked Wilson what had been

done with the post office bags, evidence of the robbery.

Ross told Wilson that police had come to his home, he was

scared, and wanted to know if Wilson had spoken to

someone about their activities. Ross also commented on

the fact that a lack of gloves had contributed to his problems (apparently referring to the fact that Johnston’s

fingerprints were found at the scene). In his efforts to

ensnare Wilson, Ross all but admitted his own guilt on

tape. Finally, the jury also heard Johnston testify in

detail to Ross’s involvement in the armed robbery. “In the

face of overwhelming evidence of guilt shown here, we are

satisfied that the claimed error was harmless.” Lane, 474

U.S. at 450.
Nos. 05-2433 & 05-2703 15

Additionally, the court gave limiting instructions to

minimize any risk of prejudice. See United States v. Stokes,

211 F.3d 1039, 1043 (7th Cir. 2000); United States v.

Coleman, 22 F.3d 126, 135 (7th Cir. 1994). The jury was

told to consider Ross’s felon status only when resolving

the felon-in-possession count and to give each count

separate consideration, and we must presume the jury

followed such instructions. See United States v. Eberhart,

434 F.3d 935, 939 (7th Cir. 2006). Given the abundant

evidence of Ross’s guilt and the court’s limiting instructions, the joinder of all counts was not prejudicial.

Ross has waived his alternate argument that the

court erred in denying his motion to sever by failing to

renew the motion at the close of the evidence. See United

States v. Rollins, 301 F.3d 511, 518 (7th Cir. 2002); United

States v. Caudill, 915 F.2d 294, 298 (7th Cir. 1990); United

States v. Phillips, 239 F.3d 829, 838 (7th Cir. 2001); United

States v. Brown, 870 F.2d 1354, 1360 (7th Cir. 1989). Ross

argues that defendants should only be obligated to renew

motions to sever defendants, not motions to sever counts.

He says that since joinder of counts is judged on the face

of the indictment, see Lanas, 324 F.3d at 899, not on

evidence adduced at trial, a defendant should not have to

renew a motion to sever counts at the close of the evidence.

We are not convinced. Although the initial question of

joinder is assessed only on the indictment (and for this

reason, we do not require parties to renew Rule 8 motions),

a judge may consider trial evidence in ruling on a Rule 14

motion to sever. See Coleman, 22 F.3d at 134. For this

reason, we have held that a motion to sever counts, like a

motion to sever defendants, is waived if not renewed at the

close of the evidence and we will not revisit that holding

here. See Rollins, 301 F.3d at 518; United States v.

Berardi, 675 F.2d 894, 899 n.10 (7th Cir. 1982); United

States v. Pacente, 503 F.2d 543, 546 n.5 (7th Cir. 1974).
16 Nos. 05-2433 & 05-2703

C. Ross Was Not Prejudiced By Being Tried With

Wilson

Ross also contends that under Rule 8(b), he and Wilson

should not have been joined for trial and that the court

should have granted his Rule 14 motion for severance.

These joinder and severance claims suffer from the

same deficiencies as the others. There is overwhelming

evidence of Ross’s guilt so he cannot show prejudicial

joinder. And by failing to renew his motion to sever

defendants at the close of the evidence, he waived that

claim and foreclosed our review.

D. The District Court Did Not Err in Failing To

Request an Evaluation of Ross’s Competence

Finally, Ross argues that the district court erred in

failing to investigate his competence to stand trial. Only a

competent person, one who “has sufficient present ability

to consult with his lawyer with a reasonable degree of

rational understanding . . . and . . . a rational as well as

factual understanding of the proceedings against him,”

may be subjected to trial. Dusky v. United States, 362

U.S. 402, 402 (1960); see Woods v. McBride, 430 F.3d 813,

817 (7th Cir. 2005). For that reason, “[a] defendant is

entitled to a hearing on his competency if a bona fide

doubt arises about his ability to consult with his attorney

or his understanding of the charges brought against him.”

Woods, 430 F.3d at 817 (emphasis added). In fact, whenever circumstances call a defendant’s competence into

question, a court must initiate a sua sponte investigation

into his mental condition. Id. Where, as here, the district

court did not order a psychiatric examination or make a

judicial determination regarding the defendant’s competence, this court’s review is “comprehensive.” United States

v. Collins, 949 F.2d 921, 924 (7th Cir. 1991).
Nos. 05-2433 & 05-2703 17

Ross contends that his persistent complaints about the

copies of the search warrant provided to him, his confused discussions regarding the warrant during status

hearings, and his inability to cooperate with three lawyers

created a bona fide doubt regarding his competence. Our

review of the record suggests otherwise. The record reflects that Ross was obsessed with seeing the original

search warrant; he complained that the copies of the

search warrant presented to him did not “look right” and

were unsigned or had illegible signatures; and he misunderstood the difference between a search warrant and an

arrest warrant. Ross’s concerns led to breakdowns in his

relationships with defense counsel and may have informed his dismissal of two attorneys.

Even so, we do not think his complaints signaled a

competence problem. That a defendant should repeatedly

press losing arguments is neither unusual nor particularly

alarming. Aside from highlighting Ross’s stubborn insistence that the inspectors lacked a search warrant, counsel

offers no basis to question Ross’s competence. For instance,

counsel does not identify a history of mental health

concerns, hospitalizations, or use of medications. See

Balfour v. Haws, 892 F.2d 556, 559-61 (7th Cir. 1989)

(affirming a district court’s finding that there was no bona

fide doubt as to the defendant’s competence although the

defendant was taking anti-psychotic medication at trial

and sentencing and had recently undergone inpatient and

outpatient psychiatric treatment). Further, it is quite

telling that not one of Ross’s three trial attorneys suggested a competence problem; rather, they found him a

difficult, but not incompetent, client. Id. at 561. The

district court did not err in failing to request a psychiatric

examination of Ross.
18 Nos. 05-2433 & 05-2703

E. The Evidence of Wilson and Johnston’s Prior

Conspiracies to Rob the Post Office Was Properly

Admitted

Wilson contends that the district court abused its

discretion in allowing Johnston to testify regarding the

1997 and 1998 conspiracies to rob the Post Office. The

district court found that the evidence was intricately

related to the charged offense and admissible under

Federal Rule of Evidence 404(b). We review that decision

for an abuse of discretion, see United States v. Holt, 460

F.3d 934, 936 (7th Cir. 2006), and conclude that the

evidence was admissible under Rule 404(b).

Rule 404(b) prohibits the admission of evidence of other

wrongs or acts for the purpose of proving the defendant’s

character or that he acted in conformity with that character on a given occasion. See United States v. Hurn, 496

F.3d 784, 787 (7th Cir. 2007). However, evidence of a prior

bad act may be admitted for other purposes, such as to

prove motive, opportunity, intent, preparation, plan,

knowledge, identity, or absence of mistake. Fed. R. Evid.

404(b); see Hurn, 496 F.3d at 787. Evidence is properly

admitted under Rule 404(b) if:

(1) the evidence is directed toward establishing a

matter in issue other than the defendant’s propensity to commit the crime charged; (2) the evidence

shows that the other act is similar enough and

close enough in time to be relevant to the matter in

issue; (3) the evidence is sufficient to support a

jury finding that the defendant committed the

similar act; and (4) the probative value of the

evidence is not substantially outweighed by the

danger of unfair prejudice.

United States v. Dennis, 497 F.3d 765, 768 (7th Cir. 2007)

(citation omitted).
Nos. 05-2433 & 05-2703 19

3 Wilson initially contended that he was improperly sentenced

because the court imposed concurrent 100-month sentences on

(continued...)

The testimony satisfies each of these elements. First, the

evidence was directed at establishing at least one matter

other than propensity, namely the defendant’s intent.

Because conspiracy is a specific intent crime, whether

Wilson intended to conspire to rob the post office was

automatically in issue. See United States v. Curtis, 280

F.3d 798, 802 (7th Cir. 2002); United States v. Smith, 995

F.2d 662, 672 (7th Cir. 1993); United States v. Monzon, 869

F.2d 338, 344 (7th Cir. 1989). Second, the prior conspiracies are also sufficiently similar to, and close in time with,

the charged offenses. All of the robberies targeted the

same post office, occurred on the same day of the week,

required the use of scissors, and involved two of the same

participants. Having occurred within five and six years of

the charged robbery, the prior bad acts are not too remote

in time. See United States v. Polichemi, 219 F.3d 698,

709 (7th Cir. 2000) (ten-year old bad acts evidence admissible under Rule 404(b)); United States v. Kreiser, 15

F.3d 635, 640 (7th Cir. 1994) (seven-year old bad acts).

Additionally, the time gap is a bit misleading given that

Johnston could not have participated in robberies during

many of the intervening years as he was incarcerated.

Third, the testimony of Johnston, a co-conspirator, was

sufficient to support a jury finding that the defendant

committed the prior acts. See Curtis, 280 F.3d at 802.

Finally, although the evidence posed a risk of prejudice, its

probative value in helping to establish an essential

element of the conspiracy—intent—outweighed the risk

of prejudice. The evidence was properly admitted under

Rule 404(b); we need not consider whether it might also

have been admitted under the intricately related evidence doctrine.3
20 Nos. 05-2433 & 05-2703

(...continued)

both counts though Count One carried a statutory maximum of

five years. Because Wilson cannot show that the district court

committed plain error, he has rightly withdrawn this argument.

See United States v. Gray, 332 F.3d 491, 493 (7th Cir. 2003) (“no

reversal is warranted under the plain error standard when the

sentence imposed does not exceed the combined statutory

maximum achievable by running the sentences consecutively”).

USCA-02-C-0072—12-14-07

III. CONCLUSION

For the foregoing reasons, the judgment of the district

court is AFFIRMED.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit