In the

United States Court of Appeals

For the Seventh Circuit

Nos. 13-2078 & 13-2982

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

TERRANCE DANIELS and DAHVEED

DEAN,

Defendants-Appellants.

Appeals from the United States District Court for the 

Northern District of Illinois, Eastern Division.

No. 09 CR 446 — Samuel Der-Yeghiayan, Judge.

ARGUED DECEMBER 11, 2014 — DECIDED SEPTEMBER 30, 2015

Before WOOD,Chief Judge, andFLAUM and MANION, Circuit

Judges.

MANION, Circuit Judge.A jury convicted Dahveed Dean and

Terrance Daniels of armed bank robbery and related gun

offenses. On appeal, Dean and Daniels challenge the district

court’s decision to try them jointly, as well as various evidentiary rulings. Additionally, Daniels argues that his constitutional rights were violated when the district court barred him
2 Nos. 13-2078 & 13-2982

from the courtroom. Finally, they both argue that the district

court erred in refusing to question a juror who, hours after

voting to convict, contacted the court to change her vote

because she had been “bullied.” Because none of the issues

presented on appeal requires reversal, we affirm. 

I. 

During 2005, there were several armed bank robberies in

the Chicagoland area. It took the government some time to

track down the suspects, but in February 2008, a grand jury

charged Dahveed Dean, Terrance Daniels, and Albert Jones in

a six-count indictment. In Count I, Dean and Daniels were

charged with robbing the First National Bank in South Holland, Illinois on August 2, 2005, while Count II charged Dean

and Daniels with using a firearm in connection with that bank

robbery. Count III charged Daniels and Jones with robbing the

Bank of Lincolnwood on August 25, 2005, and Count IV

charged Daniels and Jones with using a firearm in connection

with that bank robbery. Count V charged Dean with robbing

the First Bank in Chicago, Illinois, on December 20, 2005, and

Count VI charged Dean with using a firearm during that

robbery.

Priorto trial, Dean moved to sever his case from his two codefendants. The government opposedthemotion, arguing that

joinder was appropriate under Rule 8(b) because “the three

defendants in this case all participated in a ‘same series of acts

or transactions’—a spree of violent bank robberies involving

the same modus operandi and the same crew of individuals.” In

making this argument, the government noted that “[t]he

evidence at trial will show that the three defendants in this case
Nos. 13-2078 & 13-2982 3

were part of a crew of bank robbers ... . ” The government

explained that there were several others involved in the

charged bank robberies, including Maurice Wilbon, Marcus

Moore, and LaChaun Vance. According to the government,

Moore had participated in the August 2, 2005, bank robbery

with Dean and Daniels and the December 20 robbery with

Dean. Moore later testified at Dean and Daniels’ trial. Maurice

Wilbon had also participated in the December 20 robbery with

Dean and Moore and had previously been convicted by a jury;

he did not cooperate with the government. LaChaun Vance

had participated in the August 25, 2005, bank robbery with

Daniels and Jones and would also later testify at Dean and

Daniels’ trial. The district court denied Dean’s motion to sever

“because they were allegedly perpetrated by the same group

of individuals and because [the crimes] were allegedly perpetrated in the same manner.” Dean renewed the motion two

times, but the district court also denied the subsequent

motions.

Prior to trial Jones pleaded guilty. Dean and Daniels were

then tried jointly, although Daniels was not physically present

in the courtroom because the district court barred him based

on his pretrial conduct and his refusal to promise the court that

he would behave appropriately during the trial. Over the

course of several days, the jury heard from Moore and Vance,

as well as the victims of the robberies and the investigating

officers. 

On September 21, 2012, the jury returned a guilty verdict on

Counts I and II against Dean and Daniels related to the August

2, 2005, robbery and gun charges; against Daniels on Counts III
4 Nos. 13-2078 & 13-2982

and IV related to the August 25, 2005, robbery and gun

charges; and against Dean on Count V, related to the December

20, 2005, robbery. The jury acquitted Dean on the gun charge

in Count VI. The jury was polled and each juror agreed with

the verdict. However, a juror later informed the court that she

had felt bullied and wanted to change her vote. The Court

Security Officer (“CSO”) assigned to the jury also informed

Daniels’ attorney that he had observed the juror in the hallway

outside the jury room and that she had complained of having

a panic attack. Daniels and Dean filed motions for a mistrial

and requested the district court to inquire further of the juror.

The district court concluded that the juror merely expressed

concerns related to internal deliberation and that was not

appropriate for further inquiry. However, the district court

questioned the CSO further and learned that the juror had only

left the deliberation room after the jury had reached its verdict.

Accordingly, the district court denied the motions for a

mistrial.

Daniels and Dean appeal, presenting a host of issues,

including: 1) the joinder of Dean and Daniels’ case; 2) the

exclusion of Daniels from trial; 3) the admissibility of several

pieces of evidence; and 4) the court’s refusal to question the

juror further concerning her “bullying” comments and her

absence from the jury room. These questions require a factintensive analysis and accordingly, to avoid redundancy, we

recount below additional details as necessary. 
Nos. 13-2078 & 13-2982 5

II.

A. Joinder

On appeal, Dean and Daniels first argue their offenses were

improperly joined under Fed. R. Crim. P. 8(b), which provides

that joinder of two or more defendants is appropriate “if they

are alleged to have participated in the same act or transaction,

or in the same series of acts or transactions, constituting an

offense or offenses.” Fed. R. Crim. P. 8(b). “We review a Rule

8 determination de novo.” United States v. White, 737 F.3d 1121,

1132 (7th Cir. 2013).

The government argues that joinder under Rule 8(b) was

appropriate because Dean and Daniels were part of a crew of

bank robbers and all of the charges were part of the same series

of acts or transactions. The problem for the government,

though, is that the indictment did not allege such a theory and

in assessing the propriety of joinder, we look “solely to the

allegations in the indictment.” White, 737 F.3d at 1132. In this

case, the indictment merely charged three separate bank

robberies and three related firearm offenses. Counts I and II

charged Dean and Daniels with bank robbery and the related

firearm offense and were properly joined. But Counts III and

IV charged Daniels and Jones, but not Dean, with bank robbery

and gun charges related to the Bank of Lincolnwood robbery.

Counts V and VI charged Dean, but not Daniels, with robbing

the First Bank in Chicago and the related firearm offense. 

In response, the government stresses that under Rule 8(b)

“the defendants need not be charged in every count, nor must

they be charged with the same crimes.” White, 737 F.3d at 1132;
6 Nos. 13-2078 & 13-2982

see also Fed. R. Crim. P. 8(b). While it is true that the defendants

in a joint trial do not need to be charged in every count, or with

the same crimes, where multiple defendants are charged all of

the counts must be related to the same common plan or

scheme. United States v. Velasquez, 772 F.2d 1348, 1352–53 (7th

Cir. 1985). Here, the indictment did not charge a conspiracy, or

even separate conspiracies. Id. at 1353 (“The indictment need

not charge a single overarching conspiracy, provided the

separate conspiracies it charges arise from a common plan or

scheme and so could alternatively have been charged as a

single conspiracy.”). Nor did it charge that Dean, Daniels, and

others acted as a crew of bank robbers, or allege any facts

indicating that they robbed the various banks as part of a

common plan or scheme. Rather, the indictment alleged three

separate bank robberies (and the related firearm counts)

against different combinations of defendants. These allegations

are insufficient to support joinder under Rule 8(b). See Velasquez, 772 F.2d at 1353 (holding there was misjoinder of a heroin

charge where the indictment did not relate that charge “to any

of the charges against the other defendants named in the

indictment ... ”). 

While Counts III–VI of the indictment misjoined Dean and

Daniels, “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.’” United States v.

Lane, 474 U.S. 438, 449 (1986) (quoting Kotteakos v. United States,

328 U.S. 750, 776 (1946)). In determining whether the misjoinder had a substantial and injurious effect on the jury, courts

look to “the presence of instructions requiring the jury to
Nos. 13-2078 & 13-2982 7

consider each defendant separately, the likelihood that

evidence relating to the misjoined count would have been

admitted in a separate trial and the [strength of the] evidence

of the defendant's guilt in [determining whether] the misjoinder [is] harmless.” United States v. Diaz, 876 F.2d 1344, 1356 (7th

Cir. 1989) (citing Lane, 474 U.S. at 450). With these factors in

mind, we now explore in more depth the evidence presented

at the joint trial of Dean and Daniels.

August 2, 2005 Robbery

A jury convicted Dean and Daniels of robbing the First

National Bank in Holland, Illinois on August 2, 2005, and with

using a firearm in connection with that bank robbery. The trial

evidence of each defendant’s guilt on these charges was

overwhelming. The jury heard testimony from the supervisor

who was working at the bank during the robbery. She explained the robbery in detail, telling the jury that the three

robbers were African-American males. She also provided a

description of each and told the jury what they were wearing.

The supervisor further explained how the robbery took place

and told how one of the robbers hit her in the head with his

gun and later struck her in the face while she tried to open the

vault. After she opened the vault, she explained that the

robbers put the money in a pillow case and then sprayed

pepper spray into the bank employees’ faces before fleeing.

And she confirmed that the robbers were armed. The jury also

saw a video of the robbery, which the witness explained as it

was played for the jury. Another bank employee also testified

that more than $45,000 was stolen from the bank.
8 Nos. 13-2078 & 13-2982

While the teller could not identify the robbers, Moore, who

was one of the robbers, testified at Dean and Daniels’ trial.

Moore testified at length concerning the planning and execution of the robbery and identified Dean, Daniels, and Charles

Vance, as well as himself, as the robbers. He also identified

Dean, Daniels, and himself from the bank surveillance video.

Moore also confirmed that Dean and Daniels both had guns.

The details provided by Moore matched those testified to

earlier by the bank supervisor and were also consistent with

the video of the robbery. Additionally, cell phone records

confirmed various cell calls between the robbers. The government further presented to the jury testimony from an expert

witness concerning the use of cell towers. After summarizing

how cell phones use cell towers, the expert witness explained

that from information concerning which cell tower is being

used by a cell phone, he can determine the general location of

the person using the phone. The expert witness then testified

that a review of the records from the cellular companies

confirmed that Dean’s cell phone used a cell tower directly

west of the First National Bank about 18 minutes before the

bank was robbed. (The parties challenge the admission of those

records, but as discussed 28–32, they did not preserve that

issue for appeal.) Additionally, the government presented

testimony from an employee of an automobile dealer who

confirmed that on August 3 (the day after the robbery), Dean

paid $9,500 in cash to purchase a Chrysler 300M. The car was

placed in the name of Shafon Davis, who testified at trial that

she was Dean’s ex-girlfriend and that he had purchased the

Chrysler 300M and put the car title in her name. Moore also

testified that a little over a week after the robbery he used
Nos. 13-2078 & 13-2982 9

money from the robbery to purchase an automobile and the

government admitted a document of title showing Moore’s

purchase of that car. And LaChaun Vance, who was not

involved in the August 2, 2005, robbery, testified that Dean had

told him in the summer of 2005 that he had previously robbed

a bank and had hit a lady with a gun during that robbery.

August 25, 2005 Robbery

The evidence of Daniels’ guilt on Counts III and IV was

even more overwhelming. Daniels was charged in Count III,

along with codefendant Jones, with robbing the Bank of

Lincolnwood in Skokie, Illinois, on August 25, 2005. Count IV

charged Daniels and Jones with using a firearm in connection

with that robbery. Jones pleaded guilty but did not cooperate

with the government and did not testify at trial. However,

another member of the August 25, 2005, crew of bank robbers—LaChaun Vance—did testify. Vance, who had pleaded

guilty to robbing the Bank of Lincolnwood, testified in detail

concerning Daniels approaching him about participating in

that robbery. Daniels asked to use Vance’s rental car, a Grand

Am, as the getaway vehicle. Vance explained to the jury that

prior to the robbery they surveilled the Bank of Lincolnwood,

intending to rob it, but that after looking around they aborted

the plan. The government presented evidence to corroborate

this testimony, namely evidence that on August 22, both

Daniels’ and Vance’s cell phones utilized the tower near the

Bank of Lincolnwood and Daniels’ cell phone had used the

tower closest to the bank.
10 Nos. 13-2078 & 13-2982

Vance further testified that on the morning of the robbery,

Daniels and Jones drove to the bank in Vance’s rental Grand

Am, while he and another robber (Lamont Kent) followed in

Daniels’ car, a red Malibu. Vance identified photographs of all

of the robbers involved in the August 25, 2005, robbery and

explained their roles. He also identified Daniels and Jones from

still-shot photographs made from the bank surveillance video.

Vance explained that his role was to create a diversion, but that

he never did. Vance testified that he nonetheless called Daniels

and falsely said that he had created the diversion. Cell phone

records confirmed a telephone call had been made from

Vance’s phone to Daniels’ phone during the time Vance

claimed to have made the call. The cellular company’s records

further showed that two minutes before the Bank of Lincolnwood was robbed both Vance and Daniels’ cell phones used

the cell tower nearest to the bank. The government’s expert

also testified that in reviewing three monthsof cellular records,

other than the date of the abortive robbery, August 22, and the

date of the actual robbery, August 25, Daniels’ cell phone never

utilized the cellular tower located nearest the bank.

In addition to Vance’s testimony, the jury also saw the

video of the robbery and heard testimony from a teller, the

bank manager and a security guard (who was also an off-duty

police officer). They testified in detail concerning how the

robbery occurred, explaining that there were two robbers who

both had guns. The security guard explained that the two

robbers were African-American and that one wore a hat,

sunglasses and either a wig or had long braided hair.

Additionally, the security guard testified that one of the

robbers took his gun. The bank employees also testified that
Nos. 13-2078 & 13-2982 11

they were pepper-sprayed before the robbers left. An internal

auditor from the bank testified that nearly $80,000 was stolen

from the bank on August 25.

Vance testified that after the robbery Daniels called him and

told him he needed to report the Grand Am stolen. Vance

explained that his aunt, Shari Young, had rented the car for

him, and that he had tried unsuccessfully to contact her on her

cell phone. He then called his other aunt, Beverly Lewis

(Young’s sister), and since the sisters worked together, Vance

had her go in to their employer and bring Young out. Both

aunts testified. They confirmed Vance’s testimony and that

Vance had asked Young to report the car stolen. Lewis also

testified that Vance was with Lamont Kent, and Young testified

that Vance was driving a red Malibu at the time and she

recognized the car as “Dog’s,” which other testimony established was Daniels’ nickname. Cell phone records likewise

confirmed the calls were made as the parties had testified and

the cellular towers’ records showed Vance’s movements

through the Chicagoland area mirroring his testimony.

While Vance was trying to track down his aunt, Daniels

was trying to evade capture: A police officer for the Village of

Lincolnwood testified that in responding to the bank robbery,

he spotted a car with an occupant who fit the description of the

suspect. The police officer explained that he gave chase and

succeeded in pulling over the suspects on an entrance ramp to

a freeway. As the officer radioed in the license plate number,

the driver pointed a gun at the officer and then sped away. The

officer gave pursuit, but lost the Grand Am. The jury saw a

video captured from the officer’s dash-cam which confirmed
12 Nos. 13-2078 & 13-2982

his testimony. Vance also told the jury that when he met up

with Daniels later that day, Daniels told him that a police

officer had pulled him over and that he (Daniels) had pulled a

gun on him. Vance further testified that Daniels said they had

then abandoned the Grand Am and car-jacked someone, and

in doing so left a gun behind inside a garbage can. The jury

next heard from an elderly gentlemanwho hadbeen car-jacked

on August 25, 2005, shortly after the bank robbery. He explained that two African-Americans stole his 2002 Chevy

Malibu. The victim of the car-jacking did not attempt to

identify the perpetrators during the trial; the witness was

visually impaired. However, he had previously identified from

a photo array two other individuals as the car-jackers. Daniels

had not been included in the earlier photo array because he

was not suspected of being involved in the bank robbery at the

time. 

A search of the area surrounding the location of the carjacking revealed several pieces of damning evidence: The jury

heard testimony from an evidence technician who responded

to the car-jacking site and explained they found a gun in the

car-jacking victim’s garbage can. The bank security guard

identified that gun during trial as the weapon the robbers had

taken from him during the August 25, 2005, bank robbery. The

evidence technician also testified that they recovered a wig, a

glove (the right-hand one from a pair), and a Walgreen’s bag

from around the corner of the location of the car-jacking. They

also recovered a pair of gray sweatpants on some nearby

bushes. The witness also testified that officers recovered a lefthand glove (which matched the right-hand glove recovered at

the scene of the car-jacking) on the freeway near where the
Nos. 13-2078 & 13-2982 13

other officer had pursued the getaway vehicle. The government presented additional testimony from a forensic scientist

who had tested the Walgreen’s bag for fingerprints. The expert

testified that he had recovered five fingerprints from the bag

which matched Daniels’ fingerprints and five prints which

matchedJones’ fingerprints. Recall that Vance had testified that

Jones was the otherrobber who had entered the bank and who

fled in the Grand Am with Daniels; Jones had previously

pleaded guilty to robbing the Bank of Lincolnwood on August

25, 2005. And the expert on cellular towers testified that

Daniels’ cell phone used the cell tower next to the car-jacking

site about 15 minutes after the bank robbery. He further

testified that about ten minutes later, Daniels’ cell phone used

a cell tower nearest to where the car-jacked Malibu was later

recovered.

The jury heard additional testimony from an evidence

technician working for the Village of Skokie Police Department. This witness testified that pepper spray, sunglasses and

a black skull cap were found near the Bank of Lincolnwood on

August 25, after the robbery. The evidence technician also

testified that officers later recovered the Grand Am which had

been rented by Young for Vance. When seized, the Grand Am

had on it a license plate bearing the same numbers as those

recorded by the officer who had stopped the car on the onramp to the freeway (as confirmed by a still-shot from the

dash-cam). However, a search of that vehicle revealed another

set of license plates in the trunk—the ones which matched the

rental company’s records. Vance had previously testified that

Lamont Kent (the fourth individual involved in the robbery)
14 Nos. 13-2078 & 13-2982

had discussed with him the idea of stealing license plates from

another car and replacing the license plates on the rental car.

The morning of the robbery, while he waited with Kent in

Daniels’ Malibu, he saw Daniels and Jones putting the license

plate on the Grand Am. The forensic scientist testified that he

recovered from the license plates five fingerprints which

belonged to Lamont Kent. 

The evidence technician further testified that a search of the

Grand Am revealed a grey cap, sunglasses, two guns, a

pepper-spray holder, a red ball cap, a black skull cap, additional skull caps in the package, a orange-brown shirt, a grey

shirt, and a black leather glove. Another forensic scientist

testified that DNA recovered from the grey shirt found inside

the Grand Am matched Daniels’ DNA and “[t]he random

match probability, which is the probability of selecting a

random individualfrom the population who would also match

this major contributor profile, is one in three trillion from the

African American population ... .” She also testified that DNA

found on the black skull cap matched that of Jones.

December 20, 2005 Robbery

Count V charged Dean with robbing the First Bank in

Chicago, Illinois, on December 20, 2005, and Count VI charged

Dean with using a firearm during that robbery. As discussed

below, the evidence of Dean’s involvement in the December 20,

2005, armed bank robbery was overwhelming. (Dean was

acquitted of the firearm charge in Count VI.)

The evidence concerning the December 20, 2005, robbery

included testimony by Moore. Moore had been charged with

both the August 2, 2005, and December 20, 2005, bank robber-
Nos. 13-2078 & 13-2982 15

ies and had pleaded guilty. As detailed above, Moore testified

concerning the August 2, 2005 robbery. See supra at 7–9. Moore

also explained in detail the planning and execution of the

December 20, 2005, robbery and identified Dean, Wilbon, and

himself as the robbers. He also identified Dean, Wilbon, and

himself from still photographs taken from the bank’s video

surveillance system. A teller at the bank also testified in detail

about the robbery, identified the robbers as three AfricanAmerican males, and described their clothing. The jury also

saw the video from the bank surveillance camera, which the

teller explained as it was playing. The teller noted that the

robbers put the money in a pillow case and pepper-sprayed the

tellers. And Moore testified they took a pink pillow case into

the bank to use during the robbery. Anothertellertestified that

over $187,000 was stolen that day.

Additionally, Moore testified that prior to entering the

bank, Dean removed two guns from a hidden compartment in

the Chrysler 300. The government later presented evidence

that during a traffic stop of Dean, about two weeks after the

robbery, a search of his Chrysler 300 uncovered two handguns

in a hidden compartment in the dashboard. Dean admitted to

police that these guns belonged to him. (Dean challenged their

admission at trial, but as discussed infra at 27–28, the district

court did not err in admitting the guns into evidence.)

The government also presented testimony from an employee of a car dealership who, less than a month after the

robbery, sold a Lincoln Navigator to a woman named Nicole

Gibson (who was with an unidentified man) for $6,500 cash,

plus a Chrysler 300 as a trade-in. Gibson testified that Dean
16 Nos. 13-2078 & 13-2982

had purchased the car in her name and also later bought

accessories for the car. An employee at an automobile accessory business also testified that in late 2005 or early 2006, Dean

had purchased automotive accessories for a Lincoln Navigator

and a Chevy Caprice, including a sound and video system, and

Lamborghini doors, at a cost of approximately $18,000, and

that Dean had paid cash. Gibson also testified that on January

6, 2006, someone brought her $20,000 on Dean’s behalf to bail

him out of jail. Dean gave another ex-girlfriend, Shafon Davis,

$6,000 to bond out Wilbon. Davis also testified that on December 20, 2005 (the same day as the robbery), Dean bought her a

Buick Riviera, paying $5,500 in cash.

In addition to these witnesses, the government also

subpoenaed a friend of Dean’s named Stanford Stogner. Stogner testified that in the winter of 2005, Dean and Wilbon and a

third individual, whom he did not know, came to his house in

a gold Chrysler 300. They brought in a pillow case that had in

it what looked “[l]ike a million bucks.” Stogner testified that

they were sorting the money and that the cash still had the

bands on it.

As the above detailed discussion demonstrates, the evidence of Dean and Daniels’ guilt for each of the respective

counts of conviction was overwhelming. Each defendant was

identified by another participant in the robbery: Moore

identified Dean and Daniels as perpetrators of the August 2

robbery and Dean as a perpetrator of the December 20 robbery;

Vance identified Daniels as the other perpetrator of the August

25 robbery. Moore and Vance’s testimony concerning the

execution of the robberies was consistent with the bank

employees’ testimony, as well as the video recordings. Cell
Nos. 13-2078 & 13-2982 17

phone records further corroborated the witness testimony

concerning the events leading up to and following the robberies, and an expert witness tied the defendants’ cell phones to

cellular towers located near the banks at the time of the

robbery and near the car-jacking site at the time of the carjacking. Testimony by Vance’s aunts also corroborated his

testimony concerning the Grand Am used during the August

25 robbery. DNA and fingerprint evidence further tied Daniels

to the August 25 robbery. The cash purchases of cars (and car

accessories) quickly followed the robberies, and there was also

a flush of cash available to provide bail. And a friend of Dean

saw him with Wilbon and another man splitting a large

amount of money around the time of the December 20 robbery.

This money was brought into the house in a pillowcase—and

several witnesses testified that the robbers had used pillow

cases during the robbery. Evidence also tied Daniels to the carjacking where further evidence of the robbery was found,

including the security guard’s gun. While much evidence came

in concerning counts unrelated to each defendant,the evidence

of guilt was overwhelming. 

Moreover, the district court provided the jury with a

detailed instruction making clear that each count and defendant must be judged separately: 

Each count of the indictment charges the

defendants with having committed separate

offenses. You must give separate consideration both to each count and to each defendant. Your verdict of guilty or not guilty of

an offense charged in one count should not
18 Nos. 13-2078 & 13-2982

control your decision as to any other count.

You must consider each count and the evidence relating to it separate and apart from

every other count. You should return a separate verdict as to each defendant and as to

each count. Your verdict of guilty or not

guilty of an offense charged in one count

should not control your decision as to that

defendant under any other count.

A jury can easily understand that evidence related to the

August 25 robbery does not establish guilt for the August 2 or

December 20 robbery. In fact, the jury’s acquittal of Dean of the

gun charge in Count VI shows that the jury methodically

considered the evidence for each count and charge separately.

1

In response Dean and Daniels point to a statement the

district court made during trial that the remaining evidence

that day would apply to the entire case, when the evidence

only applied to the December 20 bank robbery charges against

Dean. Again, some additional facts are needed: Prior to the

start of trial, Dean’s attorney had asked the district court to

instruct the jury that certain evidence was only related to the

August 25 robbery charges against Daniels. The district court

The bank employee who testified about the December 20 bank robbery

1

only identified “Robber One” as being armed. Moore had identified Robber

One as Wilbon. Further, in presenting the surveillance video to the jury, the

government highlighted the fact that Robber One had a gun, but did not

likewise point to a display of a weapon by the other robbers. Conversely,

with both the August 2 and August 25 robberies, the bank employees

testified that both robbers were armed and the videos confirmed the

presence of weapons.
Nos. 13-2078 & 13-2982 19

agreed and before calling each witness, the government

informed the court whether the evidence pertained to Dean

alone, or to both defendants, and where appropriate the

district court instructed the jury, as follows: “[T]he testimony

of the next witness and some of the following witnesses will

pertain only to the August 2005, robbery of the Bank of

Lincolnwood in Skokie, Illinois. Defendant Dahveed Dean is

not charged with the August 25, 2005, robbery ... .” 

The district court gave the above instruction prior to each

witness who the government noted was to testify about the

August 25, 2005, robbery. However, one afternoon, prior to

presenting its final witnesses for the day, the government

informed the district court that the instruction was not needed.

The district court then instructed the jury that the evidence

pertained to the entire case. The upcoming witnesses, though,

pertained to only the December 20 robbery charges against

Dean. However, neither Dean’s nor Daniels’ attorney objected

to this statement. And given that the jury was later told that it

must consider each count separately, and given the overwhelming evidence of guilt, we conclude that this misstep did not

prejudice the defendants.

Dean also claims that there were two instances where the

district court wrongly informed the jury that upcoming

evidence would apply to the entire case, when the evidence

focused mostly on Daniels’ role in the August 25 bank robbery.

Technically, the district court should have said that some of the

testimony would apply to some counts and some testimony to

other counts, but again, given the later instruction to consider

the counts separately and given the overwhelming evidence, we
20 Nos. 13-2078 & 13-2982

conclude that Dean was not prejudiced by this statement.

Rather, the overwhelming evidence of Dean and Daniels’ guilt

on the respective counts convinces us that there was no prejudice stemming from the misjoinder of Counts III–VI. 

B. Exclusion of Daniels from Trial

Daniels next challenges his exclusion from trial. While a

defendant has a right to be present at every stage of trial, that

right is not absolute. Illinois v. Allen, 397 U.S. 337, 338 342–43

(1970); United States v. Benabe, 654 F.3d 753, 767–68 (7th Cir.

2011). A defendant may impliedly waive his right to attend trial

if “after he has been warned by the judge that he will be

removed if he continues his disruptive behavior, he nevertheless insists on conducting himself in a manner so disorderly,

disruptive, and disrespectful that his trial cannot be carried on

with him in the courtroom.” Allen, 397 U.S. at 343; Benabe, 654

F.3d at 768 (noting a defendant may waive right to be present

either by consent or misconduct). Further, a court dealing with

an incorrigible defendant “must be given sufficient discretion to

meet the circumstances of each case. No one formula for

maintaining the appropriate courtroom atmosphere will be best

in all situations.” Allen, 397 U.S. at 343.

In this case, prior to trial, even though he was represented

by counsel, Daniels began filing pro se documents with the

district court claiming he was not subject to the government’s

jurisdiction. The district court held a hearing to address 2

Daniels’ filings have “the earmarks of the ‘Sovereign Citizens’ move2

ment,” El v. AmeriCredit Financial Services, Inc., 710 F.3d 748 (7th Cir. 2013),

(continued...)
Nos. 13-2078 & 13-2982 21

Daniels’ filings, at which he asked Daniels if he no longer

wanted to be represented by his attorney. Rather than responding, Daniels continued rambling about his status as a security

interest holder. After stating he found no reason to replace

Daniels’ attorney, the district court told Daniels that he “may

attend the trial because that’s his right to attend the trial,” but

that “if he demonstrates any indication that he will be disruptive during the trial, the Court will take appropriate action and

it could include ... barring him from the courtroom if he is

disruptive ... .” The court further told Daniels that he could

only file documents through counsel, but Daniels continued to

submit pro se filings again using the boilerplate language of the

“sovereign citizen movement.”

Then at a status hearing held on August 29, 2012, while the

court was addressing the government’s pretrial motions,

Daniels raised his hand to speak. The court explained that it

does not “entertain questions from defendants who are represented by counsel,” to which Daniels responded, “I’m not

represented by him.” The court then asked Daniels’ attorney if

he had anything to raise and his attorney replied: “I am not

asking to address the Court at this time, Judge.” The district

court then said: “There will be no addressing the Court then by

 (...continued) 2

which, according to the FBI, purports to “believe the government is

operating outside of its jurisdiction and generally do not recognize federal,

state, or local laws, policies, or governmental regulations.”

http://info.publicintelligence.net/FBI-SovereignCitizens.pdf.Thismovement

often recruits in prisons. Id.
22 Nos. 13-2078 & 13-2982

defendants unless their lawyer addresses the Court.” After

some additional discussion concerning pretrial matters, the

district court adjourned the hearing, at which point Daniels

yelled twice, “[a]re you denying me my right to speak?” A

minute order issued after the hearing stated that Daniels

“persisted in his behavior and appeared to refuse to leave the

courtroom even after the court indicated that the matter had

concluded, at which point the United States Deputy Marshals

had to forcibly escort Daniels from the courtroom.” In the

minute order, the court “again warned that further disruptions

by Daniels during any of the proceedings related to this case,

including the trial, may result in his exclusion from the courtroom during trial.” 

Later during a pretrial conference, the court addressed

Daniels’ attorney, stating:

Since there were certain incidents that happened

previously in this court relating to your client and

I made a statement that ... if any defendant to

that matter, if any party, including a special agent

of the FBI acts disruptive, I will remove the

person from the courtroom. And as I stated, your

client has every right to be in the courtroom. ... 

and I hope he exercises that right and stays in the

courtroom. And if he decides that he does not

want to be civil in the courtroom and let the

procedures take place, then I need to know that

right now.

Daniels’ attorney replied: “I believe he has a right to be here

as the Court stated and I would just leave it at that at this
Nos. 13-2078 & 13-2982 23

point.” The district court said: “No, I’m not going to leave it at

that,” and had Daniels step up. Daniels refused to be sworn in,

again claiming sovereign status. The court told him “during the

trial, you’ll have to act in a civil manner. And if any time during

the trial you decide to be disruptive, which I hope you don’t,

then I will have no alternative but to consider that you have

surrendered your right to be in the courtroom during your trial

... .” The court asked Daniels if he had “anything to say about

that,” to which Daniels responded, “Yes. I conditionally accept

your offer that trial is not needed. Pending my ongoing private

administrative remedy will make any proceedings along with

this trial moot and I do not participate in any of the public

benefits which this court have to offer.” After some more nonresponsive babbling, the court asked Daniels: “Do you promise

to sit in court without being disruptive?” Daniels again refused

to answer. The court tried again, stating: “I just want to make

sure that you agree to be not disruptive. And if you could make

that promise to me, then I will allow you to be present in the

courtroom.” Daniels again refused to respond, so the court told

Daniels the he would be excluded from trial, but also informed

Daniels’ attorney that, “if your client decides before Monday to

agree to tell the Court that he will not be disruptive, then he will

be most welcome to do so and be present for the trial in

person.”

On Monday, when the jury venire was ready, the district

court ordered Daniels to appear to revisit the question of

whether Daniels would be barred during the trial. The district

court began by summarizing Daniels’ past misconduct and then

stated that he would have Daniels sworn in and then ask if he
24 Nos. 13-2078 & 13-2982

would promise to behave during the trial. The district court

directed Daniels twice to raise his hand to be sworn in, but

Daniels did not comply. At that point the Marshal directly

asked him “Are you going to raise your hand?” and Daniels

said “No.” Daniels then began reading nonsense from a

prepared script. This passage is illustrative of the totality of his

comments: “I conditionally accept upon proof of claim that as

a secure party creditor and a holder in due course have I not

tendered payment with the CFO and the clerk of this Court to

discharge all debts and liabilities and obligation of the defendant according to the commercial code of this state, UCC 3-603.

And upon proof of claim that with no outstanding charges, the

defendant, Terry Daniels, I move the Court to enforce the laws

of the state to discharge the collateral — namely, myself — and

set at liberty now. Are you refusing my tender of payment,

Judge?”

When Daniels stopped rambling, the district court explained

to Daniels that he had a constitutional right to be present during

the trial, but that with his conduct he was surrendering that

right. The district court then gave him one last opportunity to

assure the court that he would “obey the Court's rules and not

disrupt this Court’s proceedings no matter what [he] believe[d]

[his] sovereign status,quote/unquote,is.”The district court then

said: “What I’m going to ask you one more time: Are you able

and do you promise to not disrupt this trial?” Daniels responded again with his nonsensical ramblings: “I conditionally

accept your offer upon proof of claim—” At that point the

district court barred Daniels from trial, but stressed that “when

he obeys this Court’s orders and raises his hand, is sworn in and

promises this Court that he will not be disruptive and not cause
Nos. 13-2078 & 13-2982 25

an unfair trial for his codefendant Mr. Dean and to the government, then he will be allowed to return to the courtroom.”

Daniels’ obstinacy held firm and he neither attended trial

nor watched trial on the video feed. At the conclusion of the

government’s case, the district court had Daniels brought back

to court to inform him of his right to testify and to confirm that

he intended to waive that right, as Daniels’ attorney had

represented. Even at this point, Daniels refused to raise his hand

and be sworn in and, as the following exchange shows, belligerently refused to respond to the district court’s inquiry:

Court: Now your lawyer, Mr. Clarke, has told me

that you have told him that you do not wish to

testify at your trial. Is this correct, sir?

Daniels: I conditionally accept your offer upon

proof of claim that trial is not needed pending my

ongoing—ongoing private administrative remedy

and that being a tender of payment, it’s already

been made with the CFO and the clerk of court to

discharge all debts and liabilities and obligations

of the defendant. And according with the commercial code of this state, UCC 3603, (sic) and

upon proof of claim there were no outstanding

charges against the Defendant Terry Daniels, I

move this Court to enforce the laws of the state to

discharge the collateral, namely myself, and to be

set at liberty immediately.
26 Nos. 13-2078 & 13-2982

After several unsuccessful attempts to seek Daniels’ confirmation that he did not want to testify at trial, the district court

ruled that Daniels had waived his right to testify.

The above summary is merely a glimpse of Daniels’ belligerent behavior. The district court was exceedingly patient with

Daniels and gave him more than ample opportunity to attend

his trial. But when, after being warned that he would forfeit his

right to attend trial, Daniels refused outright to be sworn in and

assure the court that his conduct would not continue during

trial, the district court had no option but to hold that Daniels

had forfeited his right to attend trial. 

Further, in holding that Daniels had forfeited his right to

attend trial, the district court scrupulously followed our

guidance in United States v. Benabe, 654 F.3d 753 (7th Cir. 2011).

In Benabe, we explained that a defendant may impliedly waive

his right to be present at trial if, after he is initially present at

trial, he exhibits a pattern of disruptive misconduct that justifies

removal. Id. at 771. Benabe also explained that a defendant is

“initially present at trial” if he is present on the day that jury

selection began. Id. at 771–72. Thus, in this case, on the day jury

selection began the district court called Daniels back once more

to allow him the opportunity to participate in the upcoming

court proceedings. But as detailed above, Daniels again refused

to be sworn in or provide any assurance that he would not

disrupt the proceedings, notwithstanding the court’s warning

that his refusal to do so would result in him being barred from

trial. And significantly, Daniels’ refusal to provide these

assurances came after he had previously disrupted the court

proceedings by yelling twice at the judge, before being removed

by the marshals. Given the defendant’s previous outburst, the
Nos. 13-2078 & 13-2982 27

district court reasonably sought assurances from Daniels that he

would not repeatthat behavior during trial. But Daniels refused

to even be sworn in! Under these circumstances, the district

court did not abuse its discretion in barring Daniels from trial.

C. Evidentiary Rulings

On appeal, Dean and Daniels also present several challenges

to evidentiary rulings, two of which we previously mentioned.

See supra at 8, 15. We begin with those. 

Admission of Handguns

First, Dean challenges the admissionoftwo handgunspolice

recovered during a traffic stop that occurred on January 3, 2006.

Dean does not challenge the validity of the stop or the search

that uncovered the two handguns from a trap compartment in

the dashboard of his Chrysler 300. Rather, Dean argues that the

guns should not have been admitted into evidence because the

evidence was irrelevant since there was no direct evidence that

those guns were the ones used during the robberies. Dean also

argues the admission of the guns was inadmissible character

evidence and unfairly prejudicial. This court reviews thedistrict

court’s evidentiary rulings for an abuse of discretion. United

States v. Volpendesto, 746 F.3d 273, 287 (7th Cir. 2014). 

The district court did not abuse its discretion in admitting

the guns into evidence. At trial, Moore, who was also charged

with the December 20, 2005, robbery, testified that just before

that robbery, Dean removed two guns from a trap in the

dashboard of his Chrysler 300. That police recovered two guns

from a hidden compartment in Dean’s car slightly over two
28 Nos. 13-2078 & 13-2982

weeks after the December 20, 2005, robbery was relevant to

Dean’s guilt on both the robbery and the use of a weapon

counts. It was relevant to the robbery count because it corroborated Moore’s testimony concerning the detailsof the December

20, 2005, robbery. It was relevant to the weapons count (and not

improper character evidence) because a jury could reasonably

infer, given the location of the guns and closeness in time of the

seizure to the robbery, that the guns recovered were the guns

used during the robbery. Further, there was no undue prejudice

flowing from the admission of the guns—the government did

not attempt to portray Dean as a bad guy because he possessed

guns; the government used the evidence to corroborate Moore’s

testimony and to attempt to establish Dean’s guilt on the

weapons count. In the end, though, even with this evidence, the

jury acquitted Dean of the gun charges related to the December

20, 2005, robbery. But there was no error in admitting the gun

evidence in the first instance.

Admission of Evidence Related to Cellular Towers

As detailed above, at trial the government presented

evidence concerning cellular telephone calls made by the bank

robbers and the location of the cell towers used for those calls.

The government obtained this information from Dean and

Daniels’ cellular providers pursuant to a court order issued

under 18 U.S.C. § 2703(d). The Stored Communications Act

authorizes the government to obtain a court order requiring “a

provider of electronic communication service ... to disclose a

record or otherinformation pertaining to a subscriber to ... such

service (not including the contents of communications).” 18

U.S.C. § 2703(c). A judge “shall issue” the order only if the

government “offers specific and articulable facts showing that
Nos. 13-2078 & 13-2982 29

there are reasonable grounds to believe that the ... records or

other information sought [] are relevant and material to an

ongoing criminal investigation.” Id. § 2703(d). 

On appeal, Dean and Daniels do not challenge the issuance

of the court order, but rather claim that the Fourth Amendment

required the government to obtain a warrant, upon a showing

of probable cause, to obtain the cell tower location information.

They contend that a court order based merely on “specific and

articulable facts,” as allowed by § 2703(d), which in essence is a

reasonable suspicion standard, In re U.S. for an Order Pursuant

to 18 U.S.C. Section 2703(D), 707 F.3d 283, 287 (4th Cir. 2013),

violates their Fourth Amendment rights.

“We have yet to address whether ... cell-tower information

that telecommunication carriers collect is protected by the

Fourth Amendment.” United States v. Thousand, 558 Fed. Appx.

666, 670 (7th Cir. 2014). To date, three circuits have directly

addressed this issue. The Eleventh Circuit in an en bancdecision,

United States v. Davis, 785 F.3d 498 (11th Cir. 2015) (en banc), and

the Fifth Circuit in In re United States for Historical Cell Site Data,

724 F.3d 600 (5th Cir. 2013), both held that the defendants did

not have a reasonable expectation of privacy in the cellular

company’s records of the cell towers utilized by their cell

phones. Davis, 785 F.3d at 511; Historical Cell Site Data, 724 F.3d

at 611–13. Conversely, the Fourth Circuit in United States v.

Graham, 796 F.3d 332, 338 (4th Cir. 2015), held that the

“warrantless procurement of the [cell site location information]

was an unreasonable search in violation of Appellants’ Fourth

Amendment rights.” Graham, though, nonetheless upheld the
30 Nos. 13-2078 & 13-2982

district court’s denial of the defendants’ motion to suppress the

cell tower location information “because the government relied

in good faith on court orders issued in accordance with Title II

of the Electronic Communications Privacy Act, or the Stored

Communications Act (“SCA”) ... . ” Id.

Today, however, is not the day to take sides in this circuit

split because neither Dean nor Daniels filed a motion to

suppress the celltower location information in the district court.

FederalRule of Criminal Procedure 12(b)(3) identifies a “motion

to suppress evidence” as a motion that must be made before

trial. Fed. R. Crim. P. 12(b)(3). At the time of Dean and Daniels’

trial, Rule 12(e) further provided that “[a] party waives any

Rule 12(b)(3) defense, objection, or request not raised by the

deadline the court sets under Rule 12(c) or by any extension the

court provides.” Fed. R. Crim. P. 12(b)(3). However, “waiver,”

as used in Rule 12(e), did not mean the intentional relinquishment of a known right. United States v. Johnson, 415 F.3d 728, 730

(7th Cir. 2005). Nonetheless, it barred appellate review unless

the defendant established good cause for failing to file a motion

to suppress. United States v. Acox, 595 F.3d 729, 731 (7th Cir.

2010) (quoting Fed. R. Crim. P. 12(e)); United States v. Murdock,

491 F.3d 694, 698 (7th Cir. 2007); Johnson, 415 F.3d at 730–31. 

While this appeal was pending, Rule 12 was amended, and

“[t]he provision addressing the effect of a failure to raise an

issue in a pretrial motion, formerly found in Rule 12(e), was

relocated to Rule 12(c)(3), effective December 1, 2014.” United

States v. McMillian, 786 F.3d 630, 636 n.3 (7th Cir. 2015). The

revised rule deleted the reference to “waiver,” because “the rule

[did] not contemplate waiver as that term is traditionally used

in criminal cases.” McMillian, 786 F.3d at 636 n.3 (citing Fed. R.
Nos. 13-2078 & 13-2982 31

Crim. P. 12(c), Advisory Committee’s Note), and now provides:

“If a party does not meet the deadline for making a Rule

12(b)(3) motion, the motion is untimely. But a court may

consider the defense, objection, or request if the party shows

good cause.” Fed. R. Crim. P. 12(c)(3). While Rule 12(c)(3)

deleted the reference to “waiver,” “the amendment did not alter

the applicable standard,” McMillian, 786 F.3d at 636 n.3, which

means that “[b]efore a court may consider an untimely motion

to suppress, ‘a defendant must first establish good cause for the

absence of a pretrial motion.’” McMillian, 786 F.3d at 636

(quoting Acox, 595 F.3d at 731). 

On appeal, Dean and Daniels argue they had good cause for

failing to bring a motion to suppress because the legal authority

supporting their argument was not decided until after pre-trial

proceedings were completed. But nothing prevented Dean and

Daniels from presenting a Fourth Amendment argument to the

district court in a motion to suppress the cell tower location

evidence. The defendants knew all they needed to know in

order to make the Fourth Amendment argument, as one of first

impression. That additional case law later is handed down

which may better support an argument does not constitute

“good cause” for failing to make a constitutional argument in a

motion to suppress withinthedeadline established by the court.

Or more precisely, we hold that the district court would not

have abused its discretion had it found good cause lacking. See

McMillian, 786 F.3d at 636 n.4 (explaining that where a defendant does not present a timely motion to suppress to the district

court and seek to establish good cause, “we ask whether the

district court would have abused its discretion had it denied a
32 Nos. 13-2078 & 13-2982

request to present an untimely motion”). Accordingly, because

the defendants did not file a motion to suppress the cell tower

location evidence on Fourth Amendment grounds, and because

good cause does not excuse that lapse, we cannot consider their

argument on appeal.3

Admission of Evidence Seized During An October 7, 2005

Search of Dean’s Automobile

Prior to trial, Dean moved to suppress evidence recovered

during an October 7, 2005, search of his automobile, claiming

the police lacked probable cause to arrest him and that the

subsequent search of the car was unconstitutional. To understand Dean’s argument, some additional facts are needed.

On October 6, 2005, Chicago Police Officer Rick Green spoke

with a confidential informant who stated that “Davi” had

recently told the confidential informant that he (“Davi”) had

participated in several bank robberies within the past few

months. The confidential informant likewise identified Vance

(by his nickname) as involved in the bank robberies.“Davi” also

told the confidential informant that they used wigs to conceal

their identities and mace to blind the bank employees. “Davi”

Further, even if we were to consider the issue and adopt the Fourth 3

Circuit’s approach in Graham, 796 F.3d 332, it would not benefit Dean and

Daniels because, as in Graham, the cell tower location evidence would still

be admissible under the good faith exception. Id. at 338. Prudentially, too,

it is best to leave this issue for another day when the court may benefit from

full briefing and argument—which isn’t the case here as two of the three

circuit decisions directly on point were handed down following briefing

and oral argument. Davis, 785 F.3d 498 (decided May 5, 2015); Graham, 796

F.3d 332 (decided Aug. 5, 2015).
Nos. 13-2078 & 13-2982 33

further told the confidential informant that he planned to rob

another bank the next day. The confidential informant told

Officer Green that he knew “Davi” from the neighborhood, that

“Davi” lived in the area of 90th and Cottage Grove and drove

a gold Chrysler 300M. Officer Green searched the Chicago

Police Department database trying to identify the individual

and after pulling 10–15 photographs the confidential informant

identified Dahveed Dean as “Davi.” The Chicago Police

department contacted the FBI and the FBI then spoke with the

confidential informant.

At the time that the FBI interviewed the confidential

informant, it had already been investigating the August 25,

2005, robbery and knew that the robbery had been committed

by two armed African-American males, one of whom appeared

to be wearing a wig, and that the robbers used pepper spray.

The FBI had also already interviewed Young (LaChaun Vance’s

aunt who had rented the Grand Am used as the getaway car),

and the FBI believed Vance was involved in the earlier robbery.

And from their earlier investigation, the FBI knew that Vance

was friends with Dean.

The next day, officers surveilled the area where Dean’s car

was parked. They saw Dean and another individual (later

identified as Moore) meet, get in another car, then leave the

area. Surveillance followed the duo and they later returned to

the area and got in Dean’s car. The surveillance continued

throughout the morning and at one point Detective Green saw

Dean and Moore parked outside a wig shop, where they met

with two other individuals.
34 Nos. 13-2078 & 13-2982

At some point, the officers lost surveillance of Dean’s car for

about an hour. After losing sight of Dean, they learned that a

bank robbery had just happened elsewhere in Chicago. Officers

later saw Dean’s car return to the wig shop, at which time they

stopped it and arrested Dean and Moore. Dean signed a written

consent to search the car. During a search of the car, officers

recovered a wig, a pair of sunglasses, latex gloves, a nylon skull

cap, a pink pillow case, and pepper spray. 

During questioning, Moore admitted that they were going

to rob a bank, but assured the officers he would never get

involved in anything like that again. Dean and Moore were

eventually released without being charged because, as it turned

out, they had abandoned their plan to rob a bank that day and

were not involved in the actual bank robbery that had occurred.

It is unclear whether at the time the officers arrested Dean and

Moore they believed the duo had participated in the recent

bank robbery, or had received otherinformation indicating that

different perpetrators were involved. 

At trial, officers involved in the October 7 surveillance

testified concerning the surveillance and the evidence seized

from Dean’s car was admitted into evidence. Dean contends

that it was error to admit that evidence because probable cause

did not support his arrest and that the search of his car was

unconstitutional. Dean had moved to suppress this evidence

before trial, so we review the district court’s factual findings for

clear error and questions of law de novo. United States v.

Lemmons, 282 F.3d 920, 923–24 (7th Cir 2002). 

The officers who arrested Dean did not have an arrest

warrant, but an officer may make a warrantless arrest consistent
Nos. 13-2078 & 13-2982 35

with the Fourth Amendment if there is “probable cause to

believe that a crime has been committed.” Washington v.

Haupert, 481 F.3d 543, 547 (7th Cir. 2007). “An officer has

probable cause to make an arrest only when the facts and

circumstances within his knowledge and of which he has

reasonably trustworthy information are sufficient to warrant a

prudent person in believing that the suspect has committed an

offense.” Reher v. Vivo, 656 F.3d 772, 776 (7th Cir. 2011). Courts

look to a totality of the circumstances, and ask whether a

reasonable officer would believe that the suspect had committed a crime. Jones v. City of Elkhart, Ind., 737 F.3d 1107, 1114 (7th

Cir. 2013). 

In this case, there was probable cause to support Dean’s

arrest for either attempting to commit bank robbery or conspiring to commit bank robbery. “It is well settled that probable

cause can be established by an informant’s tip along with

corroboration by police work.” United States v. Banks, 405 F.3d

559, 570 (7th Cir. 2005). Here, the officers had information which

corroborated the informant’s tip that Dean had previously been

involved in bank robberies. Those robberies involved AfricanAmerican perpetrators who pepper-sprayed the tellers. And

from their investigation, the officers knew Dean was friends

with Vance and that Vance was connected to the Grand Am

used during the August 25, 2005, robbery. Surveillance on the

morning of the robbery further corroborated the tip that Dean

was preparing to rob a bank that day, as officers saw the duo

parked outside a wig shop and Moore was seen inside the wig

shop. The officers knew that a wig had been used in the prior

bank robbery. The totality of circumstances supported a finding
36 Nos. 13-2078 & 13-2982

of probable cause to arrest Dean and accordingly the subsequent search was constitutional. 

Further, if the evidence seized from Dean’s car on October

7, 2005, was improperly admitted, any error would be harmless.

In discussing the overwhelming evidence supporting the

convictions above, we did not even consider the additional

evidence seized from Dean’s car on October 8 which corroborated Moore’s account of the robberies, because the other

evidence was overwhelming. United States v. Manganellis, 864

F.2d 528, 539 (7th Cir. 1988) (“An error is harmless if the other

untainted incriminating evidence is overwhelming.”).

D. The Disgruntled Juror

As noted, the jury convicted Daniels on two counts of bank

robbery and two counts of using a firearm in the commission of

a bank robbery, and Dean on two counts of bank robbery and

one count of using a firearm in the commission of a bank

robbery. The verdict form was signed by all twelve jurors and

dated. Each juror was polled and asked, “Was this and is this

now your verdict?” Each answered affirmatively. However,

later that day a juror went to the court’s chambers and told a

staff member: “I cannot live with myself knowing what I did. I

felt bullied into making the decision that I made.” Over the

weekend, the juror left a message on the court’s voicemail

stating: “I wanted to pretty much change my verdict to not

guilty because I feel I was bullied and railroaded in the jury

deliberation process and I, for one, cannot live with the verdict

that I—I guess handed down.” A court security officer (“CSO”)

also told Daniels’ attorney that he had seen the juror complain-
Nos. 13-2078 & 13-2982 37

ing of a panic attack and sitting in the hallway near the jury

deliberation room.

Daniels and Dean filed a motion for a mistrial and asked the

court to question the juror about her comments and also about

her leaving the jury room. The court decided that there was no

evidence that the juror had been subjected to outside influences

or a physical threat, and thus no grounds under Rule 606(b) for

questioning the juror. The judge also informed the parties that 4

he had on one occasion seen the juror step out of the jury room,

but that the juror had said to the CSO “that the jury had already

reached a verdict so why couldn’t she step out.” The court

further stated that it had asked the CSO if the juror had left the

room on any other occasion and the CSO told the court that the

juror had left a second time, but that was also after the jury had

reached a verdict and it was on that occasion she had made the

comment about an “anxiety attack” or “panic attack.”

 Federal Rule of Evidence 606(b) provides: 4

(b) During an Inquiry Into the Validity of a Verdict or Indictment.

(1) Prohibited Testimony or Other Evidence. During an inquiry into the

validity of a verdict or indictment, a juror may not testify about any

statement made or incident that occurred during the jury's deliberations;

the effect of anything on that juror's or another juror's vote; or any juror's

mental processes concerning the verdict or indictment. The court may not

receive a juror's affidavit or evidence of a juror's statement on these matters.

(2) Exceptions. A juror may testify about whether:

(A) extraneous prejudicial information was improperly brought to the jury's

attention; 

(B) an outside influence was improperly brought to bear on any juror; or 

(C) a mistake was made in entering the verdict on the verdict form.
38 Nos. 13-2078 & 13-2982

Daniels and Dean claim that the district court erred by not

questioning the juror to determine if by “bullied” she meant

that she had been subjected to outside influence or physical

violence. They argue that her statement was ambiguous and

that further inquiry was thus needed. However, nothing the

juror said raised the possibility of an outside influence. She

spoke of being bullied and railroaded in the “deliberation

process.” And she said “she felt bullied.” While in his initial

consideration of the issue the district court noted that her

statements might indicate physical bullying or outside influences, after considering arguments from the parties, the district

court reached a contrary conclusion. There was just no evidence

of outside influence or a threat of physical harm, or that the

juror was absent during deliberations or was mentally incompetent. Under these circumstances, we cannot say that the district

court abused its discretion in refusing to further question the

juror. See United States v. Briggs, 291 F.3d 958, 961–62 (7th Cir.

2002) (holding the district court did not errin denying a hearing

where a juror claimed she had been “intimidated” by other

jurors because the juror “did not allege that any extraneous

prejudicial information was brought to the jury’s attention or

that any outside influence was brought to bear on any juror[ ]”);

United States v. Ford, 840 F.2d 460, 465 (7th Cir. 1988) (holding

the district court did not err in denying a hearing where a juror

had alleged “extreme and excessive pressure on individuals to

change votes,” because there was no claim of “external influence”); Tanner v. United States, 483 U.S. 107, 119 (1987)

(“[C]ourts have refused to set aside a verdict, or even to make

further inquiry, unless there be proof of an adjudication of

insanity or mental incompetence closely in advance ... of jury
Nos. 13-2078 & 13-2982 39

service [or] proof of a closely contemporaneous and independent post-trial adjudication of incompetency.”).

III.

While the government misjoined Dean and Daniels in a

single indictment which charged some unrelated counts of bank

robbery and using a firearm in connection with a bank robbery,

that error was harmless. The evidence overwhelmingly established that Dean and Daniels robbed the First National Bank in

South Holland, Illinois on August 2, 2005, and used firearms

while doing so; that Daniels robbed the Bank of Lincolnwood

on August 25, 2005, and used a firearm while doing so; and that

Dean robbed the First Bank in Chicago, Illinois, on December

20, 2005. The district court, however, did not err in admitting as

evidence the guns seized from Dean’s car when he was stopped

in January of 2006, the various evidence seized from his car

when he was arrested on October 7, 2005, or the cellular tower

records and related testimony. Finally, the district court did not

errin refusing to question the disgruntled juror when there was

no evidence that she faced outside pressure or was incompetent

to serve as a juror. For these and the foregoing reasons, we

AFFIRM.