### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 17-3493
U NITED S TATES OF A MERICA , Plaintiff-Appellee ,

v.

S COTT B OOKS , Defendant-Appellant

.

____________________ Appeal from the United States District Court for the Central District of Illinois. No. 1:16-cr-10037 — Michael M. Mihm , Judge

.

____________________
A RGUED N OVEMBER 9, 2018

— D ECIDED J ANUARY 29, 2019

____________________

Before B AUER , B RENNAN , and S CUDDER , Circuit Judges

. S CUDDER , Circuit Judge . On trial for bank robbery, Sco tt Books chose not to testify in his own defense and was found guilty and sentenced to 180 mo nths’ imprisonment. He now challenges two pretrial decision s by the district court. The fi rst allowed eyewitness testimony at trial from the two bank tellers that Books alleged based their identi fi cation of him as the robber not on personal kn owledge, but rather on information improperly supplied by a police detective. The sec-2 No. 17-3493

ond ruling would have allowed the government, had Bookschosen to testify at trial, to impeach him with physical evidence directly tying him to the robbery—evidence the police learned of (and then recovered) only as a result of a confession the district court separately had determined was unlawfully coerced. Neither challenge succeeds. Th e district court did not err in fi nding the eyewitness identi fi cations re fl ected the tellers’ fi rsthand knowledge of Books, and thus allowing their testimony at trial was entirely proper. Nor can we conclude that the district court’s co nditional impeachment ruling, even if wrong on the law, mand ates reversal in light of the overwhelming weight of evidence against Books. So we

a ffi rm. I
A On July 28, 2016 a man robbed th e Land of Lincoln CreditUnion in Normal, Illinois. Dressed in a black hooded sweatshirt, wearing a mask and neon gloves, the robber approached the counter and, while motioning toward thedrawer with what appeared to be a black handgun, demanded “all the money.” The robbery lasted all but 20 seconds, with the o ff ender making o ff with $18,000 and fl eeing in a Buick SUV.Two tellers recognized the robber’s voice and mannerisms and immediately identi fi ed him as Sco ttBooks—a longtime customer of the credit union. Holly Bateman told her supervisor (and later the polic e) she was 99% certain Books was the robber because she had interacted with him on at least six prior occasions. The second teller, Susan Phelps,No. 17-3493 3

agreed with Bateman’s identi fi cation of Books as the o ff ender. A third witness, James Teidman, was driving by the bank when he saw the robber running from the bank with a gun, only then to speed away in a Buick SUV. The police arrested Books the next day. After waiving his Miranda rights and agreeing to an interview, he confessed to the robbery, while also telling the police where they could fi nd the gloves, clothing, and fake gun he used. The police found these items exactly where Books described, and in time a grand jury indicted Books for the robbery.

BThe district court held a series of pretrial hearings to determine the admissibility of evidence contested by Books. Three of those rulings are signi fi cant to this appeal.

First , the district court suppressed Books’s confession, fi nding that the police o ffi cers overstepped and overcame Books’s will by threatening to arrest his wife and take his children into custody if he did not own up to his role in the robbery—rendering the confe ssion involuntary. The court suppressed both the confession and its physical fruits— speci fi cally, the clothing, gloves, and fake gun the police recovered based upon Books telling them where to look.
Second , the district court denied Books’s motion to prevent the two bank tellers (Bateman and Phelps) from testifying at trial. Books had sought to exclude their testimony on the basis that the police dete ctive who investigated the robbery improperly tainted their identi fi cations when, a day after the robbery, he allegedly told both witnesses that Books had confessed to the crime. The government disagreed, taking the position that the detective in no way revealed4 No. 17-3493

Books’s confession and thus in no way in fl uenced the tellers’ clear and de fi nitive identi fi cation of Books as the robber. The district court held a hearing, received testimony from the tellers and detective, and foun d it “clear from th[e] recordthat [both tellers] have a truly independent source of identifi cation of [Books] other than any suggestion that would have been put in their mind by the o ffi cer.” Accordingly, the district court permi tt ed the tellers to testify at trial.
Third , the district court considered but reserved de fi nitively ruling until trial on the government’s motion for permission to impeach Books with the fruits of his confession in the event he chose to testify. Books opposed the motion and urged the district court to hold that the price for the policeunlawfully coercing his confession should be the suppression of all incriminating evid ence (his admission and the physical fruits) for all purposes, including impeachment. Thedistrict court said it was inclined to allow some impeachment but reserved a fi nal ruling unless and until Books chose to testify and the government sought to impeach him on cross-examination with his prior statements describing the whereabouts of the clothing he wore during the robbery. The district court cast its rulin g this way: “[I]f and when weget to that point [of the trial], any questions that the government wished to ask the defendant if he testi fi es, I wouldhave to hear exactly what the questions are outside the presence of the jury so there could be speci fi c objections.”No. 17-3493 5

C In the end, Books chose not to testify at trial, and thus neither his coerced confessionnor the resulting physical fruits came into evidence. Th e government nonetheless presented a strong case, includ ing testimony from these witnesses:

 Bank teller Holly Bateman identi fi ed Books as the robber. She testi fi ed that she knew Books from her work at the credit union and immediately recognized him as the robber—so much so that she almost said “Sco tt, can you remove your mask?” Bateman told the jury that she “instantly” recognized Books’s voice and likewise knew it was Books from his distinct mannerisms. Asked at trial about her

con fi dence level that Books commi tt ed the robbery, Bateman testi fi ed that she was 110% sure because the incident had replayed over and over in her mind.

 Susan Phelps, the second bank teller, also identi fi ed Books as the robber. While not as fast as Bateman to recognize Books during the robbery, Phelps testi fi ed she was con fi

dent Books was the o ff ender based on his unique mannerisms, including his walk and ji tt ery disposition.

 Phillip Meyer, a friend and former coworker of Books, testi fi ed that he had received a text message from Books on the day of the6 No. 17-3493

robbery or the day befo re asking, “I wonder what bank I should rob today?”

 Todd Hogan, the bank’s vice president, testi fi ed that he remembered teller Holly Bateman calling him immediately after the robbery to tell him she was 99% sure the robber was Books. Hogan also explained that Books’s business account had been fl agged in the bank’s system on multiple occasions due to a tt empts to deposit checks backed by insu ffi cient funds.

 James Teidman testi fi ed that he was driving by the credit union when the robbery occurred and saw a Buick SUV, the same model later tracked to Books’s residence, fl ee the scene. While Books chose not to testify, his counsel vigorously cross-examined the government’s witnesses. When it came to tellers Bateman and Phelps, defense counsel challenged their recollection of the robbery, probed the reliability of their identi fi cations of Books and the getaway car, and examined their memory of the robber’s dress, voice, and mannerisms—all in an e ff ort to question their overall con fi dence that Books was the o ff ender. At no point during the trial didBooks’s counsel or the government refer to Books’s confession or to the police detective’s (allegedly impermissible) interaction with the two tellers. The jury returned a guilty verdict.No. 17-3493 7

II
ABooks challenges the district court’s pretrial ruling denying his motion to preclude the two tellers from testifying at trial on the basis that the po lice detective allegedly tainted their eyewitness identi fi cations by telling them that he had confessed to the robbery. This misconduct, Books contends,violated his Fifth Amendment right against selfincrimination. He further argues that the district court’s pretrial ruling too circumscribed his Sixth Amendment right to cross-examine the tellers at tria l. The facts belie both contentions. While all agree that our re view of legal issues is de novo ,the parties dispute the legal standard that governs the admission at trial of the bank tellers’ identi fi cation testimony. Books invites us to follow Kastigar v. United States , and thereby place the burden on the government to show thatthe tellers’ testimony was “derived from legitimate independent sources” and, as a result, not unduly in fl uenced by the police detective. See 406 U.S. 441, 461–62 (1972). The government, on the other hand, urges us to read Kastigaras more narrowly applying to , and not beyond, the se tt ing that gave rise to its holding—circ umstances in which a witness testi fi es pursuant to a grant of immunity. See id . The government instead asks us to employ the less onerous, dueprocess based standard found in cases like Neil v. Biggers , 409 U.S. 188 (1972), where the focus is more simply on the reliability of in-court identi fi cation testimony with the defendant (not the government) be aring the initial burden of showing that the government did something to taint the identi fi cation. See also, e.g. , United States v. L’Allier, 838 F.2d8 No. 17-3493

234, 239 (7th Cir. 1988) (explaining that the defendant bears the burden of showing that the challenged identi fi cation was unduly suggestive). The proper reach and application of the Kastigarrule has not gone unnoticed by other courts. See, e.g. , United States v. Allen , 864 F.3d 63, 90 n.121 (2d Cir. 2017) (“[I]t is not clear whether all involuntary statements or all compelled statements should be subjected to the strong medicine prescribed in Kastigar, or whether some other doctrine should govern in certain circumstances.”); United States v. Jones , 542 F.2d 186, 199 n.24 (4th Cir. 1976) (discussing uncertainty over Kastigar ’s application to coerced confessions). We have not had a case requiring us to choose sides, and this appeal does not either. We can comfortably resolve the case on narrower grounds, because under either Kastigaror Biggers (or hybrids of either standard), the evidence was more than su ffi cient to show that the two tellers, Bateman and Phelps, identi fi ed Books based on their prior dealings and fi rst-hand familiarity with hi m, without regard to any information supplied by the police detective. At no point did the tellers, and most especially Holly Bateman, ever waiver in their con fi dence that Books was the robber. So, whether assessed under Kastigaror a lesser standard, Books’s challenge to the district court’s admission of the tellers’ testimony cannot succeed.
Books fares no be tt er when contending that the district court’s ruling on the tellers’ te stimony also violated the SixthAmendment by limiting his ability to confront and crossexamine these witnesses. A fulsome cross-examination, Books posits, would have entailed questioning how the wit-No. 17-3493 9

nesses arrived at their identi fi cation testimony—a line of questioning, as Books sees it, that necessarily would have exposed that the police improperly told both tellers that he had confessed to the robbery. We cannot agree, as Books’s position mis fi res on the law and facts.A defendant’s Sixth Amendment right to confront witnesses is not absolute, but instead subject to reasonable limitations imposed by the district court. See United States v. Saunders , 166 F.3d 907, 918 (7th Cir. 1999) (citing Delaware v. Van Arsdall , 475 U.S. 673, 679 (1986)). The limitation Books challenges came from the distri ct court’s pretrial ruling suppressing his coerced confessi on. This ruling favored Booksand, beyond precluding the government from using the confession as evidence, naturally limited how he would approach cross-examining government witnesses, for he rightly wanted to avoid the jury le arning that he had confessed to the robbery. But accepting a ne cessary and proper limitation on cross-examination does not, without more, run afoul of the Confrontation Clause, especially where, as here, Books was able as a practical ma tt er to adequately, and indeed vigorously, cross-examine both bank tellers. See United States v. Sasson , 62 F.3d 874, 882 (7th Cir. 1995) (explaining that the Confrontation Clause “guarantees only an opportunity for a thorough and e ff ective cross-examination, ‘not crossexamination that is e ff ective in whatever way, and to whatever extent, the defense might wish’”) (quoting Delaware v. Fensterer, 474 U.S. 15, 20 (1985)). And Books was able to do so without ever insinuating, mu ch less revealing, that he had confessed to the robbery. The Confrontation Clause required

no more.10 No. 17-3493

B This brings us to Books’s Fifth Amendment challenge to the district court’s pretrial impeachment ruling. Books argues that the ruling—allowing the government, if he chose to testify, to cross-examine him with the fruits of his coerced confession—created an uncons titutional predicament and catch-22: he was forced to either forfeit his right to testify in his own defense, or, if he did take the stand, face a sure fi re conviction once the government impeached him with the fruits of his confession. Books may be right in his co ntention that the district court, even though reserving a fi nal ruling until after seeingwhether he chose to testify and what questions the government wanted to ask on cross-examination, commi tt ed legal error in concluding, however co nditionally, that some impeachment with the physical fr uits of a coerced confession may be permissible. While that proposition is not se tt led in the law, Books’s position is not without some support. See, e.g. , Chavez v. Martinez , 538 U.S. 760, 769 (2003) (plurality opinion) (emphasizing, albeit in dicta, that “those subjected to coercive police interrogations have an automatic protectionfrom the use of their involuntary statements (or evidence derived from their statements) in any subsequent criminal trial”).The government urges us to avoid answering this question. Pointing to Luce v. United States , 469 U.S. 38 (1984), the government says that Books wa ived any challenge to the district court’s ruling by not testifying at trial. The government’s position fi nds substantial, if not dispositive, support in our decision in United States v. Wilson , 307 F.3d 596, 600– 01 (7th Cir. 2002), where the defendant chose not to testify atNo. 17-3493 11

trial and, as a result, we declined to review the merits of his claim that a pretrial ruling on the admissibility of particular impeachment testimony violated his Fifth Amendment right to remain silent. The whole point of the rule announced in Luce , which we extended to the domain of a Fifth Amendment claim in Wilson , is that courts should refrain from reviewing claims that a particular line of cross-examination would have violated a defendant’s right ag ainst self-incrimination when the defendant in fact never testi fi ed at trial and thus never underwent cross-examination. Any other course, the reasoning runs, would require too much speculation on how the testimony and related questioning would have played out at trial. See Wilson , 307 F.3d at 600–01. Even if we agreed with Books that Wilson should be read more narrowly, our ensuing reasoning would not travel a path that resulted in an award of relief. Both parties agree that the ultimate merits of B ooks’s Fifth Amendment claim is subject to harmless error review. Indeed, the doctrine of harmless error fi nds straightforward application on the evidence presented at Books’s trial. Not every constitutional error automatically requires the reversal of a defendant’s conviction. Instead, as the Supreme Court has explained, “if the government can show ‘beyond a reasonable doubt that the erro r complained of did not contribute to the verdict obtained,’ ... then the error is deemed harmless and the defendant is not entitled to reversal.” Weaver v. Massachuse tt s , 137 S. Ct. 1899, 1907 (2017) (quoting Chapman v. California , 386 U.S. 18, 24 (1967)). This precise standard would apply if Books had testi fi ed and was subjected to certain impermissible impeachment. See Arizona v.12 No. 17-3493

Fulminante , 499 U.S. 279, 306 (1991) (holding that the doctrine of harmless error applies to the violation of the defendant’s Fifth Amendment right against self-incrimination through the admission at trial ofan involuntary confession). And the same analysis would apply if we accept Books’scontention that the district court’s ruling constructively foreclosed his decision to take the stand. See Ortega v. O’Leary, 843 F.2d 258, 262 (7th Cir. 1988) (applying harmless error analysis to the denial of the right to testify); Alicea v. Ganon , 675 F.2d 913, 925 (7th Cir. 1982) (r eaching the same conclusion). In reviewing the trial record , our obligation is to determine whether any error was harmless beyond a reasonabledoubt, and we do so in no small part by evaluating the overall strength of the prosecution’s case. See Jones v. Basinger, 635 F.3d 1030, 1052 (7th Cir. 2011). On this front, Books faces an insurmountable burden because the evidence against him at trial was overwhelming: the eyewitness testimony of the two bank tellers, the text message to a friend indicating his desire to rob a bank, the identi fi cation of his car as the getaway vehicle, and the testimony of over a dozen other witnesses—all in the broader context of his fi nancial di ffi culties and prior disputes with the La nd of Lincoln Credit Union. On this record, any error in the district court’s pretrial rulingon the scope of permissible impeachment was harmless beyond a reasonable doubt.

III Two other matters warrant attention. First, relying on Brooks v. Tennessee , 406 U.S. 605 (1972), Books argues that the district court’s impeachment ruling deprived him of the “guiding hand of counsel” by undermining his attorney’sNo. 17-3493 13

ability to make informed and independent decisions about the best trial strategy, including whether Books should take the stand in his own defense. Id. at 612. But Brooks provides no refuge, for there the Supr eme Court considered a state statute that required a defendant, if he chose to put on a defense at trial, to be the first defense witness to testify, forcing a preemptive decision to take the stand absent “a full survey of all the case.” Id. at 608. Books, in contrast, faced only the uncertainty that often accompanies an unfavorable (andperhaps even incorrect) pretrial ruling on the scope of impeachment. Whatever limitations this may have imposed on the strategic choices of Books’s defense, they were far afield from the extreme circumstance s defense counsel confronted in Brooks.Finally, we reject Books’s invitation to overturn his conviction on the basis of cumulative error. We have reviewed the record carefully and canno t get anywhere near concluding that there are “multiple errors [that] so infected the jury’s deliberation that they denied the petitioner a fundamentally fair trial.” United States v. Allen , 269 F.3d 842, 847 (7th Cir. 2001). The bo tt om line is that Books’s cumulative error argument cannot overcome the overwhelming evidence presented against him at trial. For these reasons, we AFFIRM.