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# United States Court of Appeals For the Seventh Circuit

Nos. 13-2078 & 13-2982

U NI T E D S TAT E SOF A M E RI C A , Plaintiff-Appellee,

v.

T E R R AN C E D AN I E L S and D AHV E E D D E AN , Defen dants-Appellants.
Appe als fr om the U nited States Di stric t Co urt fo r the Nor thern Distri ct o f Il l i noi s, Eastern Di v i sio n. No. 09 CR 44 6 — Sam uel Der- Yeghia yan , Judg e.
A RGU E D D E C E MB E R 11, 2014

— D E C I D E DS E PT E MB E R 30, 2015

Before W OOD, Chief Judge, and F L AUM and M AN I ON , Circ uit Judges. M AN I ON , Cir cui t Judge. A jury convic ted Dahveed Dean and T err ance Daniel s o f armed bank ro bbery and relat ed gun offenses

. On ap p e a l , Dean and Dani els challen ge the di stric t court’s deci si on to tr y them jo intly , as w ell as v arious evidentiary rulings. Addi tionally , Dani els arg ues that hi s consti tutional rights w ere vi olated wh en the di stric t c ourtbarred hi m2 Nos. 13-2078 & 13-2982
from the courtr oom. Fin ally , they both arg ue th a t t he di stric t court err ed in refusing t o questi on a juro r who, hours after

v oting to co nv ict , contacted the court to change her v ote becau se she had been “bulli ed.” Becaus e no ne of the i ssu es presented on appeal r equi res reversal, we affi rm. I. During 2005, there w e r e se v eral armed bank ro bberi es in the Chi cagoland area. It too k the governme nt some tim e to tr ack down the sus pects, but in Februar y 2008, a g r a nd jury charged Dahv eed Dean, T err ance Dani els, and Albert Jones in
a si x-count indi ctment. In Count I, Dean and Dani els w ere charged wi th ro bbing the First National Bank in S o ut h Holland, Illinoi s on August 2, 2005, whi le Count II charged Dean and Dani els wi th using a fi rear m in connecti on wi th that bank
ro bbery

. Count III charged Dani els and Jones wi th ro bbing the Bank of Lincolnw ood on August 2 5 , 2 0 05, and Count IV charged D ani els and Jones wi th u sing a fi rear m in connecti on wi th that bank ro bbery

. Count V charged Dean wi th ro bbing the First Bank i n C hi cago, Illinoi s, o n December 20, 2005, and Count VI charged Dean wi th using a fi rear m during that
ro bbery

. Pri or to tr i al, Dean mov ed to sev er hi s case from hi s tw o codefendants. The government op p os e d the m oti on, arg uing that jo inder w as appropr i ate und e r Rule 8(b) becau se “the three defendants in thi s case all partici pated in a ‘same seri es of acts
or tr ansac tions ’—a spree of viole nt bank ro bberi es inv olving the same modus operandi and the same crew of indi vidu als.” In mak ing thi s arg ument, the government noted that “[t ]h e evidenc e at tr i al wi ll show that the three defendants in thi s caseNos. 13-2078 & 13-2982 3

w ere part of a crew of bank ro bbers

... . ” The government
ex p l a ined that there were sev eral other s inv olv ed in the charged bank ro bberi es, inclu ding Mauric e Wi lbon, Mar cus Moo re, and LaChaun V ance. According to the governme nt, Moo re had p art i ci pated in the August 2, 2005, bank ro bbery wi th Dean and Dani els and the Decem ber 20 ro bber y wit h Dean. Moo re later testifi ed at Dean and Dani els’ tr i al. Mauric e Wi lbon had also partici pated in the December 20 ro bbery wi th Dean and Moo re and had prev i ously been convic ted by a jury ; he di d not cooper ate wi th the government. LaChaun V ance had p a r t i ci pated in the August 25, 2005, bank ro bbery wi th Dani els and Jones and w ould also later testif y at Dean and Dani els’ tr i al. The di stric t court deni ed Dean’s motion to sev er

“ be ca use they w ere allegedly perpet rat ed by the same gr o up of individu als and becau se [the cri mes] were allegedly perpetr ate d in the same manner .” Dean renew ed the motion tw o t imes, but the di stric t court also deni ed the sub sequ e nt motions. Pr ior to tr i al Jones pleaded gui lty

. Dean and Dani els w e r e then tr i ed jo intly

, although Dani els w as not physi cally present in the courtr oom becau se the di stric t court barred hi m based
on hi s pret rial conduc t and hi s refusal to promis e the court that he w ould behav e appropr i ately during the tr i al. Ov er the
course of sev eral days, the jury heard from Moor e and V ance,
as well as the vic tim s of the ro bberi es and the inv esti gating offi cers. On Sept ember 21, 2012, the jury returned a gui lty v erdic t on Counts I and II again st Dean and Dani els relat ed to the August 2, 2005, ro bbery and gun charges; again st Dani els on Counts III4 Nos. 13-2078 & 13-2982
and I V r e l a t ed to the August 25, 2005, ro bbery and gun charges; and again st Dean on Count V , relat ed to the Decem

ber 20, 2005, ro bbery

. The jury acqui tte d De an on the gun charge in Count VI. The jury w as polled and each ju r o r agr eed wi th the v erdic t. How ev er

, a juro r later informed the court that she had felt bulli e d a nd w a nted to change her v ote

. The Court Security Offi cer (“CSO”) assi gned t o the jury also informed Dani els’ atto rney that he had observ ed the juro r in the hallw ay outsi de the jury room and that sh e had complained of havin g
a pani c attack

. Dani els and Dean fi led motions for a mi strial and requested the di stric t court to inqui re further of the juror

. The di stric t court conclu ded that the juro r me rely expr essed
concerns relat ed to internal deli beration and that w as not appropr i ate fo r fur ther inqui ry
. How ev er

, the di stric t court questi oned the CSO further and learned that the juro r had only left the deli

beration ro om after the jury had reached i ts v erdic t. Accordi ngly

, the di stric t court denie d the motions for a mi strial. Dani els and Dean appeal, presentin g a host of i ssu es, including: 1) the jo inder of Dean and Dani els’ case; 2) t he exclusion of Dani els from tr i al; 3) the admi ssi bi li ty of sev eral pi eces of evidenc e; and 4) the court’s refusal to questi on t he juro r further concerning her “bullying” comments a nd her absenc e from the jury ro om. These questi ons require a factintensi v e analysis and accordingly , to av oid redundancy

, w e recount below addi tional detai ls asnecess ary
.Nos. 13-2078 & 13-2982 5

II. A. Joinder On appeal, Dean and Dani els fi rst arg ue their offenses w ere i mproper ly jo ined under Fed. R. Crim. P

. 8(b) , whi ch prov i des that joinder of tw o or m or e defendants i s appropr i ate “i f they
are alleged to hav e partici pated in the same act or tr ansac tion,
or in the same seri es of act s o r t r ansac tions, consti tuting an offense or offenses .” Fed. R. Crim. P

. 8 (b ). “W

e rev i ew a Rule 8 deter minati on de novo .” United Stat es v
. White, 737 F .3d 1121, 1132 (7th Ci r . 2013). Th e government arg ues that jo inder under Rule 8(b) w a s appropr i ate becau se Dean an d Dani els were par t of a crew o f bank ro bbers and all of the charges w ere part of the same seri es of acts or tr ansac tions

. The problem for the government, though, i s that the indi ctment di d not allege such a theor y and in a ss essing the propr i ety of jo inder , w e look “solely to the allegations in the indi ct me nt

. ” White, 737 F .3d at 1132. In thi s case, the indi ctment merely charged three sep a r a te bank
ro bberi es and three relat ed fi rear m offens e s. Counts I and II charged D ean and Dani els wi th bank ro bbery and the r elated fi rear m o ffens e and w ere proper ly jo ine d

. But Counts III and IV charged Dani els and Jones, but not Dean, wi th bank ro bbery and gun ch arg es related t o the Bank of Lincolnw ood robbery

. Counts V and VI charged Dean, but not Dani els, wi th ro bbing the First Bank i n Chi cago and the r elated fi rear m offens e. In response, the government str esses that under Rule 8(b) “the defendants need not be charged in ev ery count, nor mus t they be charged wi th the same cri mes.” White, 737 F .3d at 1132;6 Nos. 13-2078 & 13-2982

see also Fed. R. Crim. P

. 8(b)

. Whi le i t i s tr ue that the defendants in a jo int tr i al do not need to be charged in ev ery count, or wi th the same cri mes, where multi ple defendants are charged all of the counts mus t be relat ed to the sa me co mmon plan or sch eme. United States v
. V elasquez , 772 F

. 2 d 1 348, 1352–53 (7th Ci r
. 1985). Here, the indi ctment di d not charge a conspi racy , or
ev en separate conspi raci es. Id. at 1353 (“The ind i ctment need not charge a single ov erar ching conspi racy , prov i ded the separate co nspi raci es it charges aris e from a common plan or sc heme and so could alter nati v ely hav e been charged as a single conspi racy

.”). Nor di d i t charge that Dean, Dani els, and
o t he rs acted as a crew of bank ro bbers, or allege any facts indi cating that they ro bbed the v arious banks as part of a common plan or sch eme. Rather , the indi ctment alleged three
se parate bank ro bberi es (and the relat ed fi rear m count s) again s t d i ffe re n t c om

b in a ti on s of defendants. These allegations
are insu ffi ci ent to supp or t jo inder under Rule 8(b)

. See Velasquez, 772 F .2d at 1353 (holding there w as misjo inder of a heroin charge where the indi ctment di d not relat e that charge “to any of the charges again st the other defendants named in the indi ctment ... ”). Whi le Counts III –VI of the indi ctment mi sjoined Dean and Dani els, “an err or invo lvin g mi sjoinder ‘affects sub stanti al rights’ and requires rev ersal only i f the mi sjoinder results in actual prej udi ce becau se i t ‘had sub stanti al and injurious effect
or influ ence in deter mining the jury ’s v erdic t.’” United States v
. Lane, 474 U.S. 438, 449 (1986) (quoting Kottea kos v
. United States, 328 U.S. 750, 776 (1946) ). In deter mining whether the mi sjoinder had a sub stantia l a nd injurious effect on the jury , courts look to “the presence of instructi ons requiring the j ur y toNos. 13-2078 & 13-2982 7

consi der each defendant separately , the li kelih ood that
ev ide nc e relat ing to the mi sjoined count w ould hav e been admi tte d in a separate tr i al and the [strength o f the] evid ence of the defendant's gui lt in [determining whether] the mi sjoinder [i s] harmless.” United States v
. Diaz, 876 F .2d 1344, 1356 (7th C ir

. 1989) (ci tin g Lane, 474 U.S. at 450). Wi th these factors in mind, w e now e xplor e in mo re depth the evidenc e presen t e d at the j oint tr i al of Dean and D ani els. August 2, 2005 Robbery A jury convic ted Dean and Danie l s of ro bbing the First National Bank in Holland, Illinoi s on August 2, 2005, and wi th using a fi rear m in connecti on wi th that bank ro bbery

. The tr i al evidenc e of each defendant’s gui lt on t hese charges w as
ov erwhelming. The jury heard testim ony from the supervis or who w as w or kin g at the bank during the ro bbery

. She exp l a ined the ro bbery in detail, tellin g the jury that the th r e e
ro bbers w ere Afric an-Ameri can males. She also prov i ded a descri ption of each and told the jury what they w ere w earing. The superv i sor further explain ed how the ro bbery to ok place and told how one of the ro bbers hit he r in the head wi th hi s gun and later struck her in the face whi le she tr i ed to open the

v a ult

. After she opened the v ault, she explain ed that th e
ro bb e rs put the money in a pi llow case and then spray ed pepper sp r ay into the bank employ ees’ faces before fleeing. And she confi rmed that the ro bbers w ere armed. The jury also
saw a video o f t he r obbery , whi ch the wi tness explain ed as i t
w as play ed for the jury

. Another bank employ ee al so testifi ed that mor e than $45,000 w as stolen from the bank.8 Nos. 13-2078 & 13-2982
Whi le the teller could not i denti fy the ro bbers, Moo re, who

w as one of the ro bbers, testifi ed at Dean a nd Dani els’ tr i al. Moo re testifi ed at length concerning th e planning and ex ecution of t he ro bbery and identi fi ed Dean, Dani els, and Charles V ance, as well a s hims elf, as the ro bbers. He also i denti fi ed Dean, Dani els, and hims elf fr om the bank surv ei llance video. Moo re also confi rmed that Dean and Da niels both had guns. The details prov i ded by Moo re matched those testifi ed to
ear li er by the bank supervis or and w ere also consi stent wi th the video of the ro bbery

. Add it io na lly

, cell phone recor ds confi rmed v arious cell calls betw een the robbers. The government further presented to the jury testim ony from an exper t wi tness c oncerni ng the use of cell t ow ers. After sum mari zing how cell phones use cell tow ers, the ex pertwi tness explained tha t fr o m information concerning whi ch cell tow er i s being used by a cell phone, he can deter mine the gener al location of the person using the phone. The ex per t witness then testifi ed t ha t a r eview of the recor ds from the cellul ar compani es confi rmed that Dean’s cell phone used a cell tower d ir e ctly

w est of the First National Bank about 18 minutes before the bank w as ro bbed. (The parties challen ge the admi ssi on of those
recor ds, but as di scu ssed 28

– 32, they d id no t preserve that i ssu e for appea l.) Addi tionally , the government presented testim ony from an employ ee of an automobil e dealer who confi rmed that on August 3 (the day after the ro bbery), Dean pai d $9,500 in cas h to purchase a Chrysler 300M. The car w as placed inthe name of Shafon Davis, who testifi ed at tr i al that she w as De a n’ s ex-girlfri end and that he had purchas ed the Chrysler 300M and put the car titl e in her name. Moo re also testifi ed th a t a li ttle ov er a week after the ro bbery he usedNos. 13-2078 & 13-2982 9

money from the ro bbery to purchas e a n a ut omobi le and the government admi tte d a document of title showing Moo re’ s purchas e of that car
. And LaChaun V a nc e, who w as not inv olv ed in the August 2, 2005, ro bbery , testifi ed that Dean had told hi m in the sum mer of 2005 that he had prev i ously ro bbed a bank and had h i t a lady wi th a gun during that r obbery

. August 25, 2005 Robbery The eviden ce o f Dani els’ gui lt on Counts III and IV w as
ev en more ov erwhelming

. Daniels w as charged in Count III , along wi th codefendant Jones, wi th ro bb ing the Bank of Lincolnw ood in Sk okie, Illinoi s, on August 25, 2005. Count IV charged D ani els and Jones wi th u sing a fi rear m in connecti on wi th that r obbery

. Jones pleaded gui lty but di d not cooper ate wi th the government and di d not testif y a t tr i al. How ev er

, another member of the August 25, 2005, crew of bank ro bbers—LaChaun V

ance—di d testif

y
. V ance, who had pleaded gui lty to ro bbing the Bank of Lincolnw ood, testifi ed in detail concerning Dani els approaching him about partici patin g in that r obbery

. Dani els asked to use V ance’s rental car

, a Grand Am, as the get aw ay v ehi cle. V ance explain ed to the jury that prior to the ro bbery they surv ei lled the Bank of Lincolnw ood, intending to ro b i t, but that after look ing aro und they abort ed the plan. The government pres e nt ed evidenc e to corr obor ate thi s testim ony

, namely e v ide nce that on August 22, both Dani els’ and V

ance’s cell phones uti l i zed the tow er near the Bank of Lincolnw ood and Dani els’ cell phone had used the tow er closest to the bank.10 Nos. 13-2078 & 13-2982
V ance fu rt her testi fi ed that on the mor ning of the r obbery , Dani els and Jo ne s drove to the bank in V ance’s rental Grand Am, whi le he and another ro bber (Lamont Kent) follow ed in Dani els’ car

, a red Malib u. V

ance i denti fi ed photo gr aphs of all
o f t he ro bbers inv olv ed in the August 25, 2005, ro bbery and explain ed their ro les. He also i denti fi ed Dani els and Jon es from sti ll-s hot photo gr aphs made from the bank surv ei llance video. V ance explained that hi s ro le w as to create a di v ersi on, but that he nev er di d. V

ance testifi ed that he nonetheless called Dani els and falsely sai d that he had created the di v ersi on. Cell phone
recor ds confi rme d a telephone call had been made from V ance’s phone to Dani els’ phone during the t i me V ance clai med to hav e made the call. The cellul ar company’s recor ds further show ed that tw o minu t es before the Bank of Lincolnw ood w as ro bbed both V ance and Dani els’ cell pho ne s used the cell tow er nearest to the bank. The government’s exper t also testifi ed that in rev i ewing three month s of cellul ar recor ds, other than the date of the abort i v e ro bbery , August 22, and the date of the actual ro bbery , August 25, Dani els’ cell phone nev er uti li zed the cellular tow er lo cated nearest t he bank. In addi tion to V

ance’s testim on y

, the jury also saw the video of the ro bbery and hea r d t esti mony from a teller , the bank manager and a secu rity guard (wh o w as also an off-du ty poli ce offi cer). They t esti fi ed in detail concerning how the
ro bbery occurred, explain ing that there w ere tw o ro bbers who bot h had guns. The secu rity guard explained that the tw o
ro bbers w ere Afric an-Ameri can a nd that one w or e a hat,
sun glasses a nd e i ther a wi g or had long brai ded hai r
. Addi tionally

, t he se curity guard testifi ed that one of the
ro bbers too k hi s gun. The bank employ ees also t e st ified thatNos. 13-2078 & 13-2982 11

they w ere pepper-spray ed before the ro bbers left. An internal audi tor from the bank t esti fi ed that near ly $80,000 w as sto len from the bank o n August 25. V ance testifi ed that after the robbery Dani els called hi m and told hi m he needed to repo rt the Grand Am stolen. V ance explain ed that hi s a un t, S har i Y oung, had rente d the car for hi m, and that he had tr i ed uns ucc essf ully to contact her on her cell phone. He t he n called hi s other aunt, Bev erly Lewi s (Y oung’s si ster), and since the si sters w or ked tog ether , V a nce had her go in to their employ er and bri ng Y oun g out. Both aunts testifi ed. They confi rmed V ance’s testim ony and that V ance had ask e d Y

o ung to repo rt the car stolen. Lewi s also testifi ed that V

ance w as wi th Lamont Kent, and Y oung testifi ed that V a nc e w as driving a red Malib u at the tim e and she recog ni zed the car as “Dog’s,” whi ch other te sti mony establi shed w as Dani els’ ni ckname. Cell phone recor ds li k e wis e confi rmed the calls w ere made as the parties had testifi ed and the cellul ar tow ers’ r ecords showed V ance’s mov ements thro ugh the Chi cagoland area mirror ing hi s testi mony
. Whi le V ance w a s tr yin g to tr ack down hi s aunt, Dani els

w as tr yin g to ev ade capture: A poli ce offi cer for the Vi llage of Lincolnw ood testifi ed that in respondi ng to the bank ro bbery , he spotted a car wi th an occupan t who fi t the descri ption of the
sus pect. The poli ce of ficer explain ed that he gav e chas e and
suc ceeded in pulling ov er the sus pects on an entrance ramp to
a freew ay

. As the offi cer radio e d in the li cens e plate numb er , the driver poin ted a gun at the offi cer and then sped aw ay
. The offi cer g a ve pursui t, but lost the Grand Am. The jury saw a video captured from the offi cer’s dash- cam whi ch confi rmed12 Nos. 13-2078 & 13-2982
hi s testim ony

. V ance also told the jury that when he met up wi th Dani els l a t e r t hat day , Dani els told hi m that a poli ce offi cer had pulled hi m ov er and that he (Dani els) had pulled a gun on h i m. V

ance further testifi ed that Dani els sai d they had t hen abandoned the Grand Am and car -jacked someone, a nd in doin g so left a gu n be hind insi de a garbage can. The jury next heard from an elderly gentleman wh o h a d been car-jacked
on August 25, 2005, shortly after the bank ro bbery

. He e xplained that tw o Afric an-Ameri cans sto le hi s 2002 Chevy M alibu. The vic tim of the car -jackin g di d not att e mp t t o i denti fy the perpet rat or s during the t r ia l ; the wi tness w as vis ually i mpai red. Howev er , he had prev i ou s ly i denti fi ed from

a photo arr ay tw o other indi vidu als as the car -jacker s. Dani els had not been inclu ded in th e e a r l ie r photo arr ay becau se he

w as not sus pected of being inv olv ed in the bank ro bbery at the tim e. A search of the area surrounding the l o cati on of the car jacking rev ealed sev eral pi eces of damning evidenc e: The jury heard testi mony fro m an evidenc e techni ci an who responded t o t he car -jackin g si te and explain ed they found a gun in the
car -jackin g vic tim ’s ga r ba g e can. The bank secu rity guard i denti fi ed that gun during tr i al as the w eapon the ro bbers had take n from hi m during the August 25, 2005, bank ro bbery

. The evidenc e techni ci an also testi fi ed that they recov ered a wi g, a glove (the right-hand one from a pai r ), a nd a W algre en’s bag from aro und the corner of the location of the car -jackin g. They also recov ered a pai r of g r ay sweatpants on some nearby bus hes. The wi tness also testifi ed that offi cers recov ered a lefthand glove (wh i ch matched the right-hand glove recov ered at the scen e of the car -jackin g) on the fr eew ay near where theNos. 13-2078 & 13-2982 13

o t her offi cer had pursued the get aw ay v ehi cle. The gove r nment presented addi tional testim ony from a forensi c sc i entis t who had tested the W

algre en’s bag for fingerpr ints. The exper t testifi ed that he had recov ered fi v e fingerpr ints from the bag whi ch match e d Dani els’ fingerpr ints and fi v e prin ts whi ch matche d J one s ’ fin ge rp rints. Recall that V ance had testifi ed that Jones w as the other ro bber who had enter ed the bank and who fled in the Grand Am wi th Dani els; Jones had prev i ously pleaded gui lty to ro bbing the Bank of Lincolnw ood on August 25, 2005. And the exper t on cellul ar tow er s t e sti fi ed that Dani els’ cell phone used the cell to w er nex t to the car -jackin g site about 15 minutes after the bank ro bbery

. He furth e r testifi ed that about ten minutes later , Dani els’ cell phone used

a cell t o w er nearest to where the car -jacked Malib u w as later
recov ered. The jury heard addi tional testim ony from an evidenc e techni ci an w or kin g for the Vi llage of Sk okie P olic e Department. Thi s wi tness testifi ed that pepper spray , sun glasses and

a black skull cap were found near the Bank of Lincolnw ood on August 25, after the ro bbery

. The evidenc e techni ci an also testifi ed that offi cers later recov ered the Grand Am whi ch had been rente d by Y

oung for V

ance. When sei zed, the Grand Am ha d on i t a li cens e plate bearin g the same numb ers as t ho se recor ded by the offi cer who had stopped the car on the o nramp to the fr e ew ay (as confi rmed by a sti ll-s hot from the dash- cam)

. How ev er

, a search of that v ehi cle rev ealed another set of li cens e plates in the tr unk—the ones whi ch matched the rental company’s records. V ance had prev i ously testifi ed that Lamont Kent (the fourth indi vidu a l inv olv ed in the ro bbery)14 Nos. 13-2078 & 13-2982
had di scu ssed wi th hi m the i dea of stealing li cens e plates from another car a nd replacing the li cens e plates on the rental car
. The mor nin g o f the ro bbery , whi le he w ai ted wi th Kent in Dani els’ Malib u, he saw Dani els and Jones puttin g the li cens e plate on t he Grand Am. The for ensi c sci entis t testi fi ed that he
recov ered from t he li cens e plates fi v e fingerpr ints whi ch belonged to Lamont Kent

. The evidenc e techni ci an further testifi ed that a search of the Grand Am r ev ealed a gr ey cap, sun glasses, tw o guns, a pepper -spray holder

, a red ball cap, a black skull cap, addi tional skull caps in the package, a or ange-brown shi rt, a gr ey shi rt, and a black leather glove. A no t he r forensi c sci entis t testifi ed that DNA recov ered from the gr ey shi rt found insi de the Gr a nd Am matched Dani els’ DNA and “[t]he random

ma tch probabi li ty

, whi ch i s the probabi li ty of selectin g a random indi vi d u a l fro m the populati on who w ould also match thi s maj or contribu tor profile, is o ne in three tr i lli on from the Afric an Americ an populati on
... .” She also testifi ed that DNA found on the black skullcap match ed that o f Jones. December 20, 2005 Robbery Count V charged Dean wit h r o bbin g the First Bank in Chi cago, Illinoi s, on December 20, 2005, and Count VI charged Dean wi th using a fi rear m d ur ing that ro bbery

. As di scu ssed below , the evidenc e of Dean’s inv olv ement in the December 20, 2005, armed bank ro bbery w as ov erwhelmin g. (Dean w as acqui tte d of the fi rear m ch arg e in Count VI.) The ev ide nc e concerning the December 20, 2005, ro bbery inclu ded testim ony by Moo re. M o o re had been charged wi th both the August 2, 2005, and December 20, 2005, bank ro bber

-Nos. 13-2078 & 13-2982 15

i es and had pleaded gui lty

. As detailed abov e, Moo re testifi ed concerning the August 2, 2005 ro bbery

. See supra at 7–9. Moo re also explain ed in detail the plannin g and execution of the December 20, 2005, ro bbery and i denti fi ed Dean, Wi lbon, and hi mself as the ro bb e r s. He also i denti fi ed Dean, Wi lbon, and hi mself from sti ll photo gr aphs t a ken from the bank’s video
surv ei llance system. A teller at the bank also testifi ed in detail abo ut the ro bbery

, i denti fi ed the ro bbers as three Afric anAmeric an males, and described their clothing. The jury also
saw the video from the bank surv ei llance came r a , which the teller explain ed as i t w as playi ng. The teller noted that the
ro bbers put the money in a pi llow case and pepper -spray ed the teller s. And Moo re testifi ed they too k a pink pi llo w case into the bank to use during the ro bbery

. Another teller testifi ed that
ov er $187,000 w as stolen that day

. Addi tionally

, Moo re testifi ed that prior to enter ing the bank, Dean removed tw o guns from a hi dden compartment in the Chrysler 300. The government later presented evidenc e t ha t during a tr affi c stop of Dean, about tw o w eeks after t he
ro bbery , a search of hi s Chrysler 300 unc ov ered tw o handguns in a hi dden compartment in the dashb oar d. Dean admi tte d to poli ce that these guns belonged to hi m. (Dean challen ged their admi ssi on at tr i al, but as di scu ssed infr a at 27–28, the di str i ct court did n ot e rr in admi tting the guns into ev i dence.) The government also presente d testim ony from an employ ee of a car dealershi p who, less th a n a mo nth after the
ro bbery , sold a Lincoln Navigator to a w o man named Ni cole Gibson (wh o w as wi th an uni denti fi ed man) for $6,500 cash , plus a Chrysler 300 as a tr ade-in. Gibson testified that Dean16 Nos. 13-2078 & 13-2982
had purchase d t he car in her name and also later bought
acces sories for the car
. A n e mp l oy ee at an automobil e acces sory bus iness also testifi ed that in late 2005 or early 2006, Dean had purchas ed automot i v e acces sories for a Lincoln Navigator and a Chevy Capric e, inclu ding a sound and video system, and Lamborghin i doo r s, at a cost of approx i mately $18,000, and that Dean had pai d cash

. Gibson also testifi ed that on January 6, 2006, someone brought her $20,000 on D ean’s behalf to bai l hi m out of jail. Dean gav e another ex-girlfri end, Shafon Davi s, $6,000 to bond out Wi lbon. Davi s also testifi ed that on Decem

ber 20, 2005 (the same day as the ro bbery), Dean bought her a Bui ck Ri viera, payin g $5,500 incash

. In addi tion to these wit ness es, the government also sub p oe naed a fri end of Dean’s named St anford St ogner
. St ogner testifi ed that in t he winter of 2005, Dean and Wi lbon and a thi rd indi vidu al, whom he di d not know , came to hi s house in
a gold Chrysler 300. They brought in a pi llow case that had in i t wh a t look ed “[l]i ke a mi lli on buc ks.” St ogner testifi ed that they w ere sort ing the money and that th e cash sti ll had the bands on i t. As the abov e detailed di scu ssi on demonstrate s, the evidence of Dean and Da niels’ gui lt for each of the respecti v e counts o f conv i cti on w as o v erwhelming. Each defendant w as i de nt ifi ed by another partici pant in the ro bbery: Moo re i denti fied Dean and Dani els as perpet rat or s of the August 2
ro bbery and Dean as a perpet rat or of the December 20 ro bbery; V ance i denti fi ed Dani els as the other perpet rat or of the August 25 ro bbery

. Moo re and V

ance’s testim ony concerning the execution of t he r o bberi es w as consi stent wi th the bank employ ees’ testim ony

, as w ell as the video recor dings. CellNos. 13-2078 & 13-2982 17

phone recor ds further corr obor ated t he wi tness testim ony concerning the ev ents leading up to and following the ro bber

i es, and a n e x p e rt wi tness tied the defendants’ cell phones to cellul ar tow ers located near the banks at the tim e of the
ro bbery and near the ca r-j a ck ing si te at the tim e of the car jacking. T

esti mony by V

ance’s aunts also corr obor ated hi s testim ony conc ernin g the Gr and Am us ed during the Augus t 25 ro bbery

. DNA and fingerpr int evidenc e further tied Dani els to t he August 25 ro bbery . The cas h purchas es of cars (an d car
acces sories ) qui ckly follow ed the ro bberi es, and there w as also a flus h of cas h av ai lable to prov i de bai l. And a fri end of Dean
saw hi m wi th W ilbon and another man spli tting a large amount of money aro und the tim e of the December 20 ro bbery

. Thi s money w as brought into the house in a pi llowcas e—and
sev eral wi tnesses testifi ed that the ro bbers had used pi llow
cases during the ro bbery

. Eviden ce also tied Dani els to the car jacking where further evidenc e of the ro bbery w as fo un d, inclu ding the secu ri ty guard’s gun. Whi le much evidenc e came in concerning counts unrelated to each defendant, the e videnc e of gui lt w as ov erwhelming. Mor eov er

, the di stric t court prov i ded the jury wi th a deta iled instructi on making clear that each count and defendant mus t be judge d separately: Each count of the indict ment charges the defendants w i th having comm i tte d separate offenses

. Y

o u mus t give separate consi der

ation both to each count and to each defendant. Y our v erdic t of gui lty or no t gui lty of

an offense charged in one count shou l d not18 Nos. 13-2078 & 13-2982

contro l y our deci si on as to any other count. Y ou mus t consi der each count and the evidence relat ing to i t separate and apar t from
ev ery other count. Y

ou should ret urn a separat e v erdic t as to each defendant and as to each co un t. Y

our v erdic t of gui lty or not gui lty of an offe ns e char ged in one count should no t co ntro l y our deci si on as to that defendant und er any o ther count. A jury can e a si ly understand that evidenc e relat ed to the August 25 ro bbery does not establi sh gui lt for the August 2 or December 20 ro bbery

. In fact, the jury ’s acqui ttal of Dean of the gun charge in Count VI shows that the jury methodic ally consi dered the evidenc e for each count and charge separately

. 1
In response Dean and Dani els poin t to a statement the di stric t court made d ur ing tr i al that the remain ing evidenc e that day w ould apply to t he e nt i re case, when the evidenc e only appli ed to the December 20 bank ro bbery charges again st Dean. Again, some addi tional fa ct s a re needed: Pri or to the start o f t r ia l, Dean’s atto rney had asked the di stric t court to instruct the jury that certain evidenc e w as only relat ed to the August 25 ro bbery charges agains t Dani els. The di stric t court

The b ank e mp l oyee who testif i ed ab out the December 20 b ank ro bb ery 1 onl y i denti fi ed “Robb er One” as b ei ng armed. Mo or e had i denti fi ed Robb er One as Wi l b on. Further, i n presenti ng the surv ei l l ance v i deo to the jury, the government highl i ghted the fact tha t Robb er One had a gun, b ut di d not l i kewise poi nt to a d i splay of a weapo n by the other ro b b ers. Co nv ersel y, with b oth the August 2 and August 25 ro b b eri es, the b ank empl oyee s testif i ed tha t b oth ro b b ers were armed and the v i deo s conf i rmed the presence ofweapons.Nos. 13-2078 & 13-2982 19

agr eed and before calling e a ch wi tness, the government informed the court whether the evidenc e pert ained to Dean alone, or to both defendants, and where appropr i ate the di stric t court instructed the jury , as follo ws: “ [T] he testim ony of the next wi tness and some of the following wi tnesses wi ll pert ain only to the August 2005, ro bbery o f the Bank of Lincolnw ood in Sk okie, Illinoi s. Defendan t Dahve e d Dean i s not charg ed wi th the August 25, 2005, r obbery ... .” The di stric t court gav e the abov e instru ct io n p rior to each wi tness who the government noted w as to testify abo ut the August 25, 2005, ro bbery

. How ev er

, one afterno on, pr i or to presentin g it s fin al wi tnesses for the day , the government informed the di stric t court that the instructi on w as not needed. The di stric t court then instructed the jury that the evidence pert ained to the entire case. The upcoming wi tnesses, thoug h, p ert ained to only the December 20 ro bbery charges ag a ins t Dean. Howev er

, nei ther Dean’s nor Dani els’ at tor ney obj ected to thi s stat ement. And giv en that t he jury w as lat er told that i t
mus t consi der each count separately , and giv en the ov erwhelming evidenc e of gui lt, w e conclu de t ha t thi s mi sstep di d not prej udi ce the defendants. Dean also clai ms tha t there w ere tw o instances where the di stric t court wrongly informed the jury that upcom ing evidenc e w ould apply to the entire case, when t he evidenc e focus ed mostly on Dani els’ ro le in the August 25 bank ro bbery

. T echni cally

, the di stric t court should hav e sai d that some of the testim ony w ould apply to some counts and some testim ony to other counts, but again , giv en the later instructi on to consi der the counts separately and giv en the ov erwhel m in g e vi d e n c e, we20 Nos. 13-2078 & 13-2982
conclu de that Dean w as not prej udi ced by thi s statement. Rather , the ov erwhelming evidenc e of Dean and Dani els’ gui lt
on the respecti v e counts convinc es us that there w as no prej udi ce stemming from the mi sjoinder of Counts III–VI

. B. Exclus ion of Daniels from T rial Dani els next challen ges hi s exclusi on fr o m tr i al. Whi le a defendant has a right to be present at ev ery st age of tr i al, that right i s not absolute. Illinois v
. Allen , 397 U.S. 337, 338 342–43 (1970); United States v
. Benabe, 654 F .3d 753, 7 6 7

– 6 8 (7th Ci r
. 2011). A defendant may i mpli edly w ai v e hi s right to atte nd tr i al i f “after he has been w arned by the judge that he wil l be removed i f he conti nue s hi s di srupti v e behavi or , he nev ertheless insi sts on conduc tin g hi mself in a manner so di sorder ly , di srupti v e, and di srespectful that hi s tr i al cannot be carried on wi th hi m in the courtr oom.” Allen , 3 9 7 U

. S

. at 343; Benabe, 654 F .3d at 768 (notin g a defendant may w ai v e right to be present ei ther by consent or mi scondu ct). Furt her , a court dealing wi th

an incorrigi

ble defendant “mus t b e giv en suffi ci ent di screti on to
me e t the ci rcums tances of each case. No one formula for

m a in taining the appropr i ate courtr oom atmosphere wi ll be b e s t in all si tuations.” Allen , 397 U.S. at343. In thi s case, p r io r to tr i al, ev en though he w as repr esented by couns el, Dani el s be g a n fi ling pro se documents wi th the di st r ict court clai ming he w as not subject to the government’s jurisdi ction. The di stric t court held a hearin g to address

2

Dani el s’ fi l i ngs hav e “the earmarks of the ‘ S o v erei gn Ci tizens’ move2 ment,” El v. AmeriCre dit Financial Services, Inc. , 71 0 F.3d 74 8 (7 th Ci r. 20 13 ), (co ntinued. ..)Nos. 13-2078 & 13-2982 21

Dani els’ fi lings, at whi ch he asked Dani els i f he no longer

w anted to be repr esented by hi s atto rney
. Rather than responding, Dani e l s conti nued rambling about hi s status as a secu rity int erest holder

. After statin g he found no reason to replace Dani els’ atto rney

, the di stric t court to l d Da ni els that he “may atte nd t he tr i al becau se t hat’s his right to atte nd t he tr i al,” but that “i f he demonstrate s any indi cati on that he wi ll be d isr uptiv e during the tr i al, the Court wi ll take appropr i ate acti on and i t could inclu de

... barrin g him from the courtr oom i f he i s di srupti v e
... .” The court fu r t he r told Dani els that he could only fi le documents thro ugh couns el, but Dani els continued to sub mi t pro se fi lings again using the boi lerplate language of the “sov ereign ci tizen m ov ement.” Then at a status hearin g held on August 29, 2012, whi le the court w as addressing the governmen t ’s pret rial motions, Dani els rais ed hi s hand t o speak. The court explain ed that i t does not “enter tain questi ons fr om defendants who are repr esented by couns e l , ” to whi ch Dani els responded, “I’m not repr esented by hi m.” The court then asked Dani els’ atto rney i f he had anythin g to rais e and hi s atto r ne y r e pli ed: “I am not asking to address the Court at thi s tim e, Judge.” The distr i ct court then sai d: “There wi ll be no addressing the Court then by

( ...c onti nued) 2 whi ch, accord i ng to the FBI, purpo rts to “beli eve the government i s ope rating outsi de of i ts juri sdi cti on and generall y do not reco gnize fed eral,
s t a t e , o r l o c a l l aw s, p o l i c i e s, o r g o v e r n m e n t a l r e g u l a t i o n s
. ” http :/ /info .p u b lic intel ligen c e. net

/F BI

- S o ve r e i g

nC itiz en s .p df

. This m ovem ent of ten recr uits i n pri sons. Id

.22 Nos. 13-2078 & 13-2982
defendants unles s their lawy er addresses the Court .” After
some addi tional di scu ssi on concerning pret rial matter s, the di stric t court adjo urned the hearin g, a t wh i ch poin t Dani els y elled twi ce, “[a]re y ou denying me my right to speak?” A minute or der i ssu ed after the hearin g stated that Dan iels “persi sted in hi s behavi or and appe a r e d t o refuse to leav e the courtr oom ev en after the court indicated that the matter had conclu ded, at whi ch poin t the Uni ted St ates Deputy M arshals had to forc ibly escort Dani els from the courtr oom.” In the minute or der

, the court “again w arned that further di srupti ons by Dani els during any o f the proceedings relat ed to thi s case, inclu ding the tr i al, may resu l t in hi s exclusi on from the courtro om duri ng tr i al.” Later during a pret rial confe r e nc e, the court addressed Dani els’ atto rney

, statin g: Sinc e there w ere certain inci dents that happen ed prev i ously in thi s court relat ing to y our cli ent and I made a statement t hat

... i f any defendant to that matter

, i f any party

, inclu ding a speci al agent of the FBI acts d isrupti v e, I wi ll remove the person from the courtr oom. And as I stated, y our cli ent has e v ery right to be in the courtr oom.
... and I hope he exer ci ses that right and stays in the courtr oom. An d i f he deci des that he does not
w ant to be civ i l in the courtr oom and let the procedure s t ake place, then I need to know that right now

. Dani els’ atto rney replied: “I beli ev e he has a right to be here
as the Court stated and I w o ul d just leav e i t at that at thi sNos. 13-2078 & 13-2982 23

poin t.” The di stric t c ourt sai d: “No, I’m not going to leav e i t at that,” and had Dani els step up. Dani els refused to be sw or n in, again clai ming sov ereign status. The court told hi m “during the tr i al, y ou’ll hav e to act in a ci vil manner
. And i f any tim e during the tr i al y ou deci de to be di sr upt i v e, whi ch I hope y ou don’t, then I wi ll hav e no alter nati v e but to consi der that y ou hav e surrendered y our right to be in the courtr oom during y our tr i al ... .” The court asked Dani els i f he had “anything t o say about that,” to whi ch Dani els responded, “Y es. I condi tionally accept y our offer that tr i al i s not needed. Pending my ongo ing priv ate admini strat i v e remedy wi ll make any proceedings along wi th thi s tr i al moot and I do not partici pate in a ny o f the publi c benefi ts whi ch thi s court hav e to offer .” After some more nonresponsi v e babb ling, the court asked Dani els: “Do y ou promis e to si t in court wi thout being di srupti v e?” Dani els again refused to a ns w e r
. The court tr i ed again , statin g: “I just w ant to make
sure that y ou agr ee to be not di srupti v e. And i f y ou could make that promis e to me, then I wi ll allo w y ou to be present in the courtr oom.” Dani els again refused to respond, so the court told Dani els the he w ould be excluded from tr i al, but also informed Dani els’ atto rney that, “i f y our cli ent deci des before Monday to agr ee to tell the Court that he wi ll not be di srupti v e, then he wi ll be most w elcome to do so and be present for the tr i al in person.” On Monday

, when the jury v eni re w as r e a d y , the di stric t court or dered Dani els to appear t o rev i si t the questi on of whether Dani els w ould be barred during the tr i al. The dis tr i ct court began by sum mari zing D ani e ls’ past mi scondu ct and then stated that he w ould hav e Dani els sw or n in and then ask if he24 Nos. 13-2078 & 13-2982

w ould promis e to behav e during the tr i al. The di stric t court di rected Dani els twi ce to rais e hi s hand to be sw or n in, but Dani els di d not comp l y
. At that point the Mar shal di rectly asked hi m “Are y ou going to raise y our hand? ” and Dani els sai d “N o.” Dani els then began reading nonsens e from a prepar ed scri pt. Thi s pass age i s i llus tr ativ e of the tot ali ty of hi s comments: “I condi tionally accept upon p r o o f of clai m that as
a secu re party credi tor and a holder in due course hav e I not tendere d payment wi th the CF O and t he clerk of thisCourtto di sch arg e all debt s and li abi li ties and obli gation of the defendant according to the commerci al code of thi s state, UCC 3-603. And upon proo f of clai m that wi th no outstanding charges, the defendant, T

err y Dani els, I mov e the Court to enforce the laws of the state to di sch arg e the collateral — namely , myself — and set at liberty now

. Are y ou refusing my tender of payment, Judge?” When Dani els stopped rambling, the di st ri c t c ou rt e xp l a ined to Dani els that he had a consti tutional right to be present during the tr i al, but that wi th hi s conduc t he w as surren d e r ing that right. The dis tr i ct co ur t then gav e hi m o ne last oppor tuni ty to
assu re the court that he w ould “obey the Court 's rules and not di srupt thi s Court ’s proceedings no matter what [he] beli ev e[d] [hi s] sov ereign statu s, qu ote / un qu ote, i s
. ” The di stric t court then sai d: “What I’m go ing to ask y ou one mor e tim e: Are y ou able

a nd d o y ou promis e to not di srupt thi s tr i al?” Dani els responded again wi th hi s nonsens i cal ramblings: “I condi tionally accept y our offer upon proo f o f cl a im—” At that poin t the di stric t court barred Dani els from tr i al, but stressed that “when he obeys thi s Court ’s or ders and rais es hi s hand, i s sw or n in and promis es thi s Court that he wi ll not be di srupti v e and not caus eNos. 13-2078 & 13-2982 25

an unfai r tr i al for hi s codefendant Mr

. Dean and to the government, then he wi ll be allowed to r eturn t o the cour tr oom.” Da niels’ obstinacy held fi rm and he nei ther atte nded tr i al
nor w atched tr i al on the video feed. At the conclu si on of th e government’s case, the di stric t court had Dani els brought back to court to inform hi m of hi s right to testif y and to confi rm that he intended to w ai v e that right, as Dani els’ atto rney had repr es e n ted. Ev en at thi s poin t, Dani els refused to rais e hi s hand and be sw or n in and, as the following exchange shows, belli ger ently r efus ed to r espond to t he di stric t court ’s inqui ry : Court : Now y our lawy er , Mr

. Clark e, has told me that y ou ha ve told hi m that y ou do not wi sh to testif y at your trial. Is thi s correct, sir? Dani els: I condi tionally accept y our offer upon proo f of clai m that tr i al i s not needed pending my on go in g— on go ing priva te a d m ini s tr a tiv e re m e d y and that being a tender of payment, i t’s already been made wi th the CFO and the clerk of court to di sch arg e all debts and li abi li ties and obli gations of the defendant. And according wi th the commerci al code of thi s state, UCC 3603, (si c) and upon proo f of cl a im there were no outstanding charges again st the Defendan t T err y Dani els, I
mov e thi s Court to enforce the laws of the state to di sch arg e the collateral, namely myself, and to be set at lib ert y im medi ately

.26 Nos. 13-2078 & 13-2982
After sev eral uns ucc essf ul atte mpts to seek D ani els’ confi r mati on that he di d not w ant to testif y at t rial, the di stric t court ruled that Dani els had w ai v ed hi s ri ght t o te sti fy

. The abov e sum mary i s merely a glim pse of Dani els’ belli ger ent be hav i or
. The di stric t court w as exceedingly patien t wi th Dani els a nd gav e hi m mor e than ample o pport uni ty to atte nd hi s tr i al. But when, after being w arned that he w ould forfeit hi s right to atte nd tr i al, Dani els refused outr i ght to be sw or n in and
assu re the court that hi s conduc t w ould not continue dur ing tr ia l , t he di stric t court had no option but to hold that Dani els had forfei ted hi s ri ght t o att end trial. Furt her , in holding that Dani els had forfeited hi s right to atte nd tr ia l , the di stric t court scrupu lously follow ed our gui dance in United Stat es v
. Benabe, 654 F .3d 753 (7th Ci r
. 2011). In Benabe, w e explained that a defendant may i mpli edly w ai v e hi s r ig ht to be present at tr i al i f, after he i s ini tiall y present at tr i al, he exhib i ts a patter n of di srupti v e mi scondu ct that justifi es
remov al. Id. a t 771. Benabe also explain ed that a defendant i s “ini tiall y present at t r ia l ” i f he i s present on the day that jury selecti on began

. Id

. at 771–72. Thus, in thi s case, on the day jury selecti on began the di stric t court called Dani els back once more to allow hi m the oppor tuni t y to partici pate in the upcoming court proceedings. But as detailed abov e, Dani els again refused to be sw or n in or prov i de a ny assu rance that he w ould not di srupt the proceedings, notwi thsta nding the court’s w arnin g that hi s refusal to do so w ould result in hi m being b arr ed from tr i al. And si gni fi cantly , Dani els’ refusal to pr o vide these
assu r ances came after he had prev i ously di srupted the court proceedings by y elling tw i ce at the judge, before being removed by the marshals

. Gi v en the defendant’s pr evious outburst, theNos. 13-2078 & 13-2982 27

di stric t court reasonably so u ght a s s u ran c e s from Dani els that he

w ould not repeat that behavi or during tr i al. But Dani els refused to ev en be sw or n in! Under these ci rcums tances, t he d i stric t court did not abu se i ts di screti on i n barring Dan i els from trial. C. Evidentiary Ruli ngs On appeal, Dean and Dani els also present se ve ra l challen ges to evidenti ary rulings, tw o of whi ch w e prev i ously menti oned. See su pra at 8, 15. W

e beginwi th those. Admiss ion of Handguns First, Dean challen ges the admi ss i on of tw o handguns poli ce recov ered during a tr affi c stop that occurred on January 3, 2006. Dean does not challen ge the v ali di ty of the stop or the sear ch that un cov ered the tw o handguns from a tr ap compartment in the dashb oar d of hi s Chrysler 300. Rather , Dean arg ues that the guns should not hav e been admi tte d into evidenc e becau se the evidenc e w as i rr elev ant since there w as no di rect evidenc e that those guns w ere the ones used during the ro bberi es. Dean also arg ues the a d mis sion of the guns w as inadmi ssi ble character evidenc e and unfai rly prej udi ci al. Thi s court rev i e w s the d i s tr i ct court’s evident i ary rulings for an abus e of di screti on. United States v. V

olpendesto , 746 F .3d 273, 287 (7th Ci r . 2014). The d ist ric t court di d not abus e i ts di screti on in admi tting the guns into ev i dence. At tr i al, Moo re, who w as also charged wi th the De ce mb e r 20, 2005, ro bbery , testifi ed that just before that ro bbery

, Dean removed tw o guns from a t r a p in the dashb oar d of hi s Chrysler 300. That poli ce recov ered tw o guns from a hi dden compartmen t in Dean’s car sli ghtly ov er tw o28 Nos. 13-2078 & 13-2982

w eeks after the December 20, 2005, ro bber y w as relev ant to Dean’s gui lt on both the ro bbery and the us e of a w eapon counts. It w as relev ant to the ro bbery count becau se i t corr oborat ed Moo re’s te s tim ony c on c ernin g the details of the Decem ber 20, 2005, ro bbery

. It w as relev ant to the w eapons count (and not i mproper character ev i dence) becaus e a jury could reasonably infer , giv en the location of the guns and closenes s in tim e of the sei zure to the ro bbery

, that the guns recov ered wer e the guns used during the ro bbery

. Furt her , there w as no undu e prej udi ce flowing from the admi ssi on of the guns—t he government di d not atte mpt to port ray Dean as a bad guy becau se he possess ed guns; the government used the evidenc e to c or rob orate Moo re’s testim ony and to atte mpt to establi sh Dean’s gui lt on the

w eapons count
. In the end, though, ev en wi th thi s evidenc e, the jury acqui tte d Dean of the gun charges relat ed to the Decem ber 20, 2005, ro bb e ry

. But there w as no err or in admi tting the gun evidenc e in the fi rst ins tance. Admiss ion of E vidence R elated t o Cellular T owers As detailed abov e, at tr i al the government presented evidenc e concerning cellul ar telephone calls made by the bank
ro bbers and the location of the cell towers used for those c alls. The g o v ernment obtained thi s information from Dean and Da nie l s’ cellul ar prov i ders pursuant to a court or der i ssu ed under 18 U. S.C. § 2703(d). The St or ed Communi cati ons Act authorizes the government to obtain a court or der requiring “a prov i der of electro ni c commu ni cati on service

... to di scl ose a recor d or other information pert aining to a sub scri ber to

... such
se r v i ce (not inclu ding the contents of commu ni cati ons).” 1 8 U.S.C. § 2703(c)

. A judge “shall i ssu e” t he o r d e r only i f the government “offers spec i fi c and art i culab le facts showing thatNos. 13-2078 & 13-2982 29

there are reasonable gr ounds to belie ve t hat the

... recor ds or other information sought [] are relev ant and material to an ongo ing crim inal inv esti gation.” Id. § 2703(d). On appeal, Dean and Dani els do not challen ge the i ssu ance of the court or der

, but rat her clai m that the Four th Amendment required the gov ernment to obtain a warr ant, upon a showing of probable caus e, to obtain the cell tow er location information. They contend that a court or der based merely on “speci fi c and art i culab le facts,” as allow ed by § 2703(d), whi ch in essenc e i s a reasonab l e sus pi ci on standard, In re U.S. for an Order Pursu ant to 18 U.S.C

. Sec ti on 2703(D) , 707 F .3d 283, 287 (4th Ci r
. 2013), violates thei r F ourt h Amendmen t r i ghts. “W e hav e y et to address whether

... cell-tow er information that telecommuni cati on car r iers collect i s prot ected by the Four th Amendment.” United States v
. Thousand, 558 Fed. Appx. 666, 670 (7th Ci r
. 2014). T o date, three ci rcui ts hav e di rectly addressed thi s i ssu e. The Elev enth Ci rcui t in an en banc deci si on, United States v
. Davis , 785 F .3d 498 (11th Ci r
. 2015) ( en banc ), and the Fifth Ci rcui t in In re United States for Historical Cell Site Data, 724 F .3d 600 (5th Ci r
. 2013), both held that the defendants di d not hav e a reasonable expectat i on of priv acy in the cel l ular company’s recor ds of the cell tow ers uti li ze d by their cell phones. Davis , 785 F .3d at 511 ; Historical Cell Site Data, 724 F .3d at 6 1 1

– 1 3. Conv ersely

, the Four th Ci rcui t in United States v
. Graha m , 796 F

. 3 d 332, 338 (4th Ci r
. 2015), held that the “w arr antless procurement of the [cell si te location information]

w as an unreasonable s earch in violati on of Appellants’ Fourth Amendment rights.” Graha m , though, nonetheless upheld the30 Nos. 13-2078 & 13-2982
di stric t court’s deni al of the defendants’ motion to supp ress the cell tow er location information “becau se the government relied in goo d fai th on court or ders i ssu ed in accordance wi th T i tle II of the Electronic Communi cati ons Pri v acy Act, o r the St or ed Communi cati ons Act (“SCA”) ... . ” Id. T oday , how ev er

, i s not the day to t a k e sides in thi s ci rcui t spli t becau se nei ther Dean nor Dani els fi led a motion to supp ress the c e l l to wer location information in the di stric t court. Fe d e ra l Ru le of Criminal Procedure 12(b) (3) i denti fi es a “ m oti on to supp ress ev ide nc e ” as a motion that mus t be made before tr i al. Fed. R. Crim. P

. 12(b) (3). At the tim e of Dean and Dani els’ tr i al, Rule 12(e) fur t he r prov i ded that “[a] party w ai v es any Rule 12(b) (3) defense, o bj e ct i on, or request not rais ed by the deadline the court sets under Rule 12(c) or by any ext ensi on the court prov i des.” Fed. R. Crim. P

. 12(b) (3). Ho w ev er

, “w ai v er ,” as used in Rule 12(e), di d not mean t he int e nt io nal relinqu i shment of a known right. United States v
. Johnson, 415 F .3d 728, 730 (7th Ci r
. 2005). Nonetheless, i t barred appellate rev i ew unless the defendant establi shed goo d caus e for fai ling to fi le a motion to supp ress. Un i ted States v
. Acox, 595 F .3d 729, 731 (7th Ci r
. 2010) (quot ing Fed. R. Crim. P

. 12(e)); United S tat es v
. Murdock , 491 F .3d 694, 698 (7th Ci r . 2007); Johnson, 415 F .3d at 730–31. Whi le thi s appeal w as pending, Ru le 12 w as amended, and “[t]he prov i si on addressing the effect o f a fai lure to rais e an i ssu e in a pret rial motion, former ly found in Rule 12(e) , was reloc ated to Rule 12(c) (3) , effecti v e December 1, 2014.” U n i ted States v
. McMillian , 786 F .3d 630, 636 n.3 (7th Ci r
. 2015). The
rev i sed rule deleted the refer ence to “w ai v er ,” becau se “the rule [di d] not contemplate w ai v er as that t erm istr adi tionally us ed in cri minal cases .” McMillian , 786 F .3d at 636 n.3 (ci tin g Fed. R.Nos. 13-2078 & 13-2982 31

Crim. P

. 12(c) , Advis or y Commi tte e’s Note), and now prov i des: “I f a party does not meet the deadline for making a Rule 12(b) (3) motion, the mot ion i s unti mely

. But a court may consi der the defense, o bj ecti on, or request i f the party shows goo d caus e.” Fed. R. Crim. P

. 12(c) (3). Whi le Rule 12(c) (3) deleted the refer ence to “w ai v er ,” “the amendmen t di d not alter the app li cable standard,” McMillian, 786 F .3d at 636 n.3, whi ch
means that “[b] efore a court may consi der an unti mely motion to supp ress, ‘a defendant mus t fi rst establi sh goo d caus e for the absenc e of a pret rial motion.’” McMillian , 786 F

. 3d at 636 (quoti ng Acox, 595 F .3d at 731). On appeal, Dean and Dani els arg ue they had goo d caus e for fai ling to bri ng a motion to supp ress becau se the legal authority supp or tin g their arg ument w as not deci ded unti l after pre-tr i al proceedings w ere completed. But nothin g prev ented Dean and Dani els from presentin g a Four th Amendment arg ument to the di stric t court in a mo tion to supp ress the cell tow er location evidenc e. The defen d ants knew all they needed to know in or der to make the Four th Amendment arg ument, as one of fi rst i mpressi on. That addi tion a l ca se law later i s handed down whi ch may better supp or t an a rg ument does not consti tute “goo d caus e” for fai ling to make a consti tutional arg ument in a motion to supp ress wi thin the d e a dline establi shed by the court. Or more preci sely

, w e hold that the di stric t court w ould not hav e abus ed i ts di screti on had i t found goo d caus e lacking. See McMillian , 786 F .3d at 636 n.4 (explaining that wher e a d e fendant does not present a tim ely motion to supp ress to the di stric t court and seek to establi sh g o o d ca use, “w e ask whether the di stric t court w ould hav e abus ed i ts di screti on had it deni ed a32 Nos. 13-2078 & 13-2982 request to present an unti mely motion”). Accordingly , becau se the defendants did notfi le a motion to suppress the celltow er location evidenc e on Four th Amendment gr ounds, and becau se goo d caus e does not excuse that lapse, w e cannot consi der their arg ument on appeal. 3 Admiss ion of Evidence Seized During An Oct ober 7, 2005 Search of Dean’s Automobile Pri or to tr i al, Dean mo v ed to supp ress evidenc e recov ered during an October 7, 2005, search of hi s aut o mo bile, clai ming the po l ice lacked probable caus e to arr est hi m and that the sub sequent search of the car w as unc onsti tutional. T o under

stand Dean’s arg ument, some addi tional f acts are needed. On October 6, 2005, Chi cago P olic e Offi cer Ri ck Green spoke wi th a co nf ide nt i al informant who stated that “Davi ” had recently told the confi denti al informant th a t he (“Davi ”) had p a r t ici pated in sev eral bank ro bberi es wi thin the past few months. The confi denti al inf o r mant li kewi se i denti fi ed V ance (by hi s ni ckname) as inv olv ed in the bank ro bberi es.“Davi ” also told th e co nfi denti al informant that they used wi gs to conceal their identi ties and mace to blind t he bank e mploy ees. “Dav i ”

Further, even i f we we r e t o c o ns i der the i ssue and adopt the Fourth 3 Ci rcui t’s approach in Graham , 796 F .3d 332, it w oul d not b enefi t D ean and Dani el s b ecause, as i n Graham , the cel l tower l ocati on ev i dence woul d stil l b e a dmi ssible under the goo d faith exceptio n. Id

. a t 338. P rudenti all y, too, i t i s b est to l eav e this i ssue fo r another day when the cour t may b enefi t fro m ful l b ri efi ng and argumen t—which i sn’t the case here as t wo of the three ci rcui t deci sio ns di rectl y on poi nt were han ded do wn fo l l owi ng b ri efi ng and or al argumen t. Dav is , 78 5 F.3d 49 8 (de ci ded May 5, 20 15 ); Graham , 79 6 F.3d 33 2 ( deci ded Aug. 5 , 2 01 5)

.Nos. 13-2078 & 13-2982 33

further told the confi denti al informant that he plann e d t o ro b another bank the next day

. The confi denti al informant told Offi cer Green that he knew “Davi ” from the nei ghborho od, that “Da v i” l ived in the area of 90th and Co ttag e Grov e and dr ov e
a gold Chrys l e r 300M. Offi cer Green searched the Chi cago P olic e Department database tr y ing to i denti fy the indi vidu al and after pulling 10–15 photo gr aphs the confi denti al informant i denti fi ed Dahv eed Dean as “Davi .” The Chi cago P olic e department cont acted the FBI and the FBI then spoke wi th the confi denti al informant. At the tim e that the FBI int erv i ew ed the confi denti al informant, i t had already been inv esti gating the August 2 5, 2005, ro bbery and k new t hat the ro bbery had been commi tte d by tw o armed Afric an-Ameri can males, one of whom appeared to be w earing a wi g, and t ha t t he ro bbers used pepper spray
. The FBI had also already interv i ewed Y oung (LaChaun V

ance’s aunt who had rente d the Grand Am used as the get aw ay car), and the FBI beli ev ed V

ance w as inv olv ed in the earlier ro bbery

. And from their earlier inv esti gation, the FBI knew that V a nce
w as fri ends w i th Dean. The next day

, offi cers surv ei lled the area wher e Dean’s car
w as parke d. They saw Dean and a no t her indi vidu al (later i denti fi ed as Moo re) meet, get in a no ther car , then leav e the
area. Surve i llance follow ed the duo and t hey later ret urned to the ar e a a nd got in Dean’s car
. The surv ei llance continued thro ughout the mornin g and at one poin t Detecti v e Green saw Dean and Moo re parke d outsi de a wi g shop, where they met wi th tw o ot her in di vidu als.34 Nos. 13-2078 & 13-2982
At some poin t, the offi cers lost surv ei llance of Dean’s car for

a bo ut an hour

. After losing si ght of Dean, they learned t ha t a bank ro bbery had just happened elsewh ere in Chi cago. Offi cers later saw Dean’s car ret urn to the wi g shop, at whi ch tim e they stopped i t and arr ested Dean and Moo re. Dean si gned a wri tte n consent to search the car
. During a search of t he car , offi cers recov ered a wi g, a pai r of sun glasses, latex gloves, a nylon skull cap, a pink pi llow cas e, and pepper spray

. During questi oni ng, M o or e admi tte d that they w ere going to ro b a bank, but assured the offi cers he w ould nev er get inv olv ed in anythin g li ke that again

. Dean and Moo re w ere
ev entually released wi thout being charged becau se, as i t turned out, they had abandoned their plan to rob a bank that day and

w ere not inv olv ed in the actual bank ro bbery that had occurred. It i s unc lear whether at the tim e the offi cers arr ested Dean and Moo re they bel i ev ed the duo had partici pated in the recent bank ro bbery

, or had receiv ed other information indi cating that di fferent perpet rat or s were inv olv ed. At tr i al, of fic e r s inv olv ed in the October 7 surv ei llance testifi ed concerning the surv ei llance and the eviden ce sei zed from Dean’s car w a s a d mi tte d into evidenc e. Dean contends that i t w as err or to admi t that evidenc e becau se probable caus e di d not supp or t hi s arr est a nd that the search of hi s car w as
unc onsti tutional. Dean had mov ed t o su ppress thi s evidenc e before tr i al, so w e rev i ew the di stric t court’s factual findings for clear err or a nd que sti ons of law de novo. United States v
. Lemm ons , 282 F .3d 920, 923–24 (7th Ci r 2002). Th e o ffic ers who arr ested Dean di d not hav e an arr est
w arr ant, but an offi cer may m a ke a w arr antless arr est consi stentNos. 13-2078 & 13-2982 35

wi th the Four th Amendment i f there is “ p r obable caus e to believ e that a cri me has been commi tte d.” W ashington v
. Haupert, 481 F .3d 543, 547 (7th Ci r
. 2007). “ A n offi cer has probable caus e to make an arr est only when the fact s a nd ci rcums tances wi thi n hi s k no wl e dge and of whi ch he has reasonably trustw or thy information are suffi ci ent to w arr ant a prudent person in beli eving that the sus pect has commi tte d an offense.” Reher v
. V

ivo , 656 F .3d 772, 776 (7th Ci r
. 2011). Co urts look to a tot ali ty of the ci rc um st a nc e s, and ask whether a reasonable offi cer w ould beli ev e that t he sus pect had commi tted a cri me. Jones v
. City of Elkhart , Ind. , 737 F .3d 1107, 1114 (7th Ci r . 2013). In t his ca se, there w as probable caus e to supp or t Dean’s
arr est for ei ther atte mpting to commi t bank ro bbery or conspi r ing to commi t bank r o bbery

. “It i s w ell settled that probable
caus e can be establi shed by an informant’s tip along wi th
corr obo r a tion by poli ce w or k.” United States v
. Banks , 405 F .3d 559, 570 (7th Ci r
. 2005). Here, the offi cers had information whi ch
corr obor ated the informant’s tip that Dean had prev i ously been inv olv ed in bank r obberies

. Those r obberies inv olv ed Afric anAmeric an perpet rat or s who pepper -spray ed the tel l e r s. And from their inves t ig a tion, the offi cers knew Dean w as fri ends wi th V ance and t hat V

ance w as connected to the Grand Am used d ur ing the August 25, 2005, ro bbery

. Survei llance on the mornin g of t he robbery further cor ro borat ed the tip that Dean

w as prepar ing to ro b a bank t ha t d a y , as offi cers saw the duo parke d outsi de a wi g s hop and Moo re w as seen insi de the wi g sh op. The offi cers knew that a wi g had been used in t he p r io r bank ro bbery

. The tot ali ty of ci rcums tances supp or ted a finding36 Nos. 13-2078 & 13-2982

o f probable caus e to arr est Dean and accordingly the sub se quent search w as cons tituti onal. Furt her , i f t he evidenc e sei zed from Dean’s c a r o n O ctober 7, 2005, w as i mproper ly admi tte d, any err or w ould be harmless. I n di scu ssing the ov erwhelming evidenc e supp or tin g t he convic t i ons abov e, w e di d not ev en consi der the addi tional evidenc e sei zed from Dean ’ s ca r on October 8 whi ch corr oborat ed Moo re’s accoun t of the ro bberi es, becau se t he o t her evidenc e w as ov erwhelming. United States v
. Manganellis, 864 F .2d 528, 5 3 9 (7th C i r
. 1988) (“An err or i s har mless i f the other untainted i ncri minati ng evidenc e i s ov erwhelming.”). D. The Disgruntl ed Juror As noted, the jury convic ted Dani els on tw o counts of bank
ro bbery and tw o counts of using a fi rear m in the commi ssi on of

a bank ro bbery

, and Dean on tw o counts o f ba nk ro bbery and
one count of using a fi rear m in the commi ssi on of a bank
ro bbery

. The v erdic t form w as si gned by all tw elv e juro rs and dated. Each juro r w a s p o l led and asked, “W as thi s and i s thi s
now y our v erdic t?” Each answered affi rmativ ely

. How ev er

, later that day a j ur o r w e nt to the court’s chambers and told a staff member: “I cannot li v e wi th myself knowing what I di d. I felt bulli ed into making the deci si on that I made.” Ov er the

w eekend, t he juro r left a mess age on the court’s v oic emai l statin g: “I w anted to pret ty mu ch ch ange my v erdic t to not gui lty be ca us e I feel I w as bulli ed and railroaded in the jury deliberation process and I, for one, cannot li v e wi th the v erdic t that I—I guess handed down.” A court secu rity offi cer (“CSO”) also told Dani els’ atto rney that he had seen the juro r complain-Nos. 13-2078 & 13-2982 37

ing of a pani c attack and si tting in the hallway nea r t he jury deliberation roo m. Dani els and Dean fi led a motion for a mi strial and asked the court to questi on the juro r about her comments and also about her leaving the jury ro om. The court deci ded that there w as no evidenc e that the juro r had been subjected to outsi de influ ences
or a physi cal threat, and thus no gr ounds under Rule 606(b) for questi oni ng the juro r
. The judge also informed the parties that 4 he had on one occasi on seen the juro r step out of the jury ro om, but that the juro r had sai d to the CSO “that the jury had already reached a v erdic t so why couldn’t she step out.” The co urt further stated that i t had asked the CSO i f the juro r had left the
ro om on any other occasi on and the CSO told the court that the juro r had left a second tim e, but that w as also after the jury had reached a v erdic t and i t w as on that occasi on she had made the comment about an “anxi ety attack” o r “pani c attack.”

Fed eral Rule ofEvide nce 6 06 (b) pro v i des: 4 (b) Duri ng an

Inquiry Into the Vali di ty ofa Verdi ct o r Indi ctment. (1 ) Prohi b i t ed Testi mony or Other Evidence

. During an i nqu i ry i nto the

v ali di ty of a v erdi ct or i ndic tment, a juro r may not t e st i fy ab out any statem ent made or i ncid ent tha t occ urred duri ng the jury's del i b eratio ns; the eff ect of any thing on tha t juro r's or another juro r's v ote ; or any juro r's menta l processes concerni ng the v erdi ct or i ndic tment. The court may not
rece i v e a juro r's affi dav i t or evidence of a juro r's statem ent on these matters. (2 ) E xceptio ns. A j uro r may testify ab out whether: (A) extraneous preju di c ia l info rm a tion was i mprop erl y b ro ught to the jury's attention; (B) an outsi de i nfl uence was impro perl y brought to bear on any juro r; o r (C) a mistake was ma de i n enteri ng the v erdi ct o n the verdic t fo rm.38 Nos. 13-2078 & 13-2982
Dani els and Dean clai m t hat t he d i stric t court err ed by not questi oni ng the juro r to d e t ermin e i f by “bulli ed” she meant that she had been subjected to outsi de inf l uence or physi cal violence. They arg ue that her statement w as ambi guous and t ha t further inqui ry w as thus needed. How ev er , nothin g t he juro r sai d rais ed the possi bi li ty of an outsi de influ ence. She spoke of being bulli ed and railro a ded in the “deliberation p r ocess.” And she sai d “she felt bulli ed.” Whi le in hi s ini tial conside rat i on of the i ssu e the di stric t court noted that her statements mi ght indi cate physi cal bullying or outsi de influ

ences, after consi dering arg uments from the parties, the di stric t court reached a contrar y conclu si on. There w as just no evidenc e of outsi de influ ence or a threat of physi cal harm, or that the ju ror w as absent during deliberations or w as mentally in c om p e tent. Under these ci rcums tances, w e cannot say that the di stric t court abus ed i ts di screti on in refusing to further questi on the juro r
. See United States v
. Briggs , 291 F .3d 95 8 , 961–62 (7th Ci r
. 2002) (holding the di stric t court di d not err in denying a hearin g where a juro r clai med she had been “inti mi dated” by o t he r juro rs becau se the juro r “di d not allege t ha t a ny ext raneous prej udic i al information w as brought to the jury ’s atte nti on or that any outsi de influ ence w as brought to bear on any juro r[ ]”); United States v
. F ord, 840 F .2d 460, 465 (7th Ci r
. 1988) (holding the di stric t court di d not err in denying a hearin g where a juro r had alleged “ext reme and excessi v e pressure on indi vidu als to change v ote s,” becau se there w as no clai m of “ext ernal influ

ence”); T

anner v
. United States , 483 U.S. 107, 1 1 9 (1987) (“[C]ourts hav e refused t o set asi de a v erdic t, or ev en to make further inqui ry

, unles s there be proo f of an adjudi cat i on of insani t y o r mental incompetence closely in adv ance
... of juryNos. 13-2078 & 13-2982 39

service [or] proo f of a closely contemporaneo us and independent post-tr i al adjudi cati on of in competency .”). III. Whi le the government mi sjoined Dean and Dani els in a s in gl e in d i ctment whi ch charged some unrelated counts of bank
ro bbery and using a fi rear m in connecti on wi th a bank ro bbery , that err or w as harmless. The e v idence ov erwhelmingly establi shed that Dean and Dani els ro bbed the First National Bank in So uth Holland, Illinoi s on August 2, 2005, and used fir e a r ms whi le doin g so; t hat Dani els ro bbed the Bank of Lincolnw ood
on August 25, 2005, and used a fi rear m whi le doin g so; and that Dean ro bbed the First Bank in Chi cag o , Illinoi s, on Decem ber 20, 2005. The di stric t court, how ev er , di d not err in admi tting as evidenc e the guns sei zed from Dean’s car when he w as stopped in January of 200 6 , t he v arious evidenc e sei zed from hi s car when he w as arr ested on October 7, 2005, or the c ellular tow er recor ds and relat ed testim ony
. Fin ally , the di stric t court di d not
err in refusing to questi on the di sgruntled juro r when there w as
no evidenc e that she faced outsi de pressure or w as incompetent to serv e as a juro r
. For th ese and the foreg oin g reasons, w e AFF IRM

.