In the

United States Court of Appeals

For the Seventh Circuit

No. 08-3603

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DAVID SIMMONS,

Defendant-Appellant.

Appeal from the United States District Court

for the Central District of Illinois.

No. 07 CR 10128—Michael M. Mihm, Judge.

ARGUED OCTOBER 9, 2009—DECIDED MARCH 30, 2010

Before POSNER, ROVNER, and WILLIAMS, Circuit Judges.

ROVNER, Circuit Judge. On September 14, 2007, a bank

in Normal, Illinois, was robbed of approximately $5,862

by two gunmen. David Simmons was arrested that day

for the crime, and a jury found him guilty of armed

bank robbery under 18 U.S.C. § 2113(a) & (d), and of

using or carrying a firearm during a crime of violence

in violation of 18 U.S.C. § 924(c)(1)(A). Simmons has

appealed that conviction to this court.
2 No. 08-3603

The robbery of the U.S. Bank in Normal occurred

shortly after noon. Two men arrived at the bank armed

with guns. While one man stood near the door pointing

a gun at the people in the bank, the other approached

the teller counter and demanded money. Surveillance

cameras captured the scene, but both men wore white

coverings over their faces hindering identification. In

addition, both men wore light-colored gloves, with the

result that no useable fingerprints were recovered from

the bank. After obtaining approximately $5,862 from the

tellers and placing it in a backpack, the men fled the

bank by foot.

Both men ran toward nearby railroad tracks, pursued by

an employee of a local auto shop. The men eventually

split as they approached the tracks, with one heading

north into some bushes and the other running into an

area of trees by a water utility building. The police were

alerted to the location and descended on the area. An

officer spotted a man crouched near some trees wearing

a black shirt and something white on his head. When

spotted, the man ran back into the trees and four detectives gave chase. Eventually he ran toward South

Adelaide Street with the detectives in pursuit. A police

officer responding to the scene saw a man running across

South Adelaide Street wearing a dark sweatshirt and

something white on his head. He circled a building and

intercepted the man, who was later identified as David

Simmons. They recovered a white t-shirt sleeve and

black cap nearby, and found a loaded Glock handgun

in the woods. The officers testified that at the station

they recovered a pair of light-colored Under Armour
No. 08-3603 3

football gloves in Simmons’ pants pocket. He was

wearing a long-sleeved black t-shirt inside out with the

tag visible, which was consistent with the clothing worn

by one of the robbers on the surveillance tape. In addition, he had the cut-off sleeve of a white t-shirt around

his neck.

At trial, the government introduced the testimonies of

five eyewitnesses to the bank robbery, but none of them

were able to identify Simmons as the perpetrator of the

crime. The government also introduced statements made

by Simmons when he was interrogated at the police

station, which corresponded with the known details of

the crime. In those statements, Simmons admitted that

he carried the Glock firearm into the bank, that his role

was to stay by the door to provide cover for the other

bank robber, and that the other bank robber approached

the tellers and told them to put money in the black backpack he was carrying. Simmons then acknowledged

that they subsequently fled on foot, that he heard someone running behind them, and that they split up once

they reached the railroad tracks. He further stated that

he thought he had found a good hiding place, but once

he saw the officer approach in his vehicle, he began

running toward his grandmother’s apartment, which

was a block west of where he was arrested.

The government also introduced testimony relating to

the gloves and ultimately introduced the gloves themselves into evidence. It is that testimony and evidence

that forms the basis for Simmons’ appeal. First, over

defense counsel’s objection, the district court allowed
4 No. 08-3603

Detective Merica to testify as to whether the gloves in

Simmons’ possession at the time of arrest were consistent

with the gloves worn by the robbers in the surveillance

photo. Merica had conducted the interview of Simmons

at the police station and therefore had viewed firsthand

the gloves found in Simmons’ possession. Nevertheless,

Simmons argued that Merica’s testimony invaded the

province of the jury by giving an opinion as to whether

gloves offered as an exhibit were the same type as in the

bank photo. The district court allowed it as lay opinion

testimony under Federal Rule of Evidence 701, which

provides for testimony in the form of opinions or inferences as a non-expert if those opinions or inferences

are “(a) rationally based on the perception of the witness,

(b) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue, and (c) not

based on scientific, technical, or other specialized knowledge within the scope of Rule 702.”

The government later moved to admit the gloves into

evidence, which the district court ultimately granted.

Simmons challenges that as well, asserting that the

chain of custody was so deficient that the gloves should

not have been admitted. The government concedes

that there is a gap in that chain of custody. Merica testified that after his interview of Simmons, he asked

Detective Underwood to collect Simmons’ clothing in the

paper bag Underwood was carrying, and to bring

Simmons’ clothing back from the processing at the

county jail. Underwood testified that he collected the

clothing as requested, but did not personally collect

gloves from Simmons and did not put gloves in the bag.
No. 08-3603 5

Underwood further testified that he gave the bag to

Detective Acuncius. Acuncius testified that she received

the bag from Underwood and photographed its contents. She testified that the bag contained, among other

items, the Under Armour football gloves. She compared

the photograph she had taken of the gloves to the gloves

which the government sought to admit at trial, and noted

that the gloves even had the same cocklebur on them

that was apparent in the photograph.

Simmons argues that the gloves should not have been

admitted into evidence because there is not evidence as

to whether the gloves in the bag were the ones obtained

from Simmons during the interview. The district court

recognized the gap in the chain of custody, but admitted

the evidence. The court relied on our cases in United

States v. Lee, 502 F.3d 691, 697 (7th Cir. 2007), and United

States v. Williams, 44 F.3d 614, 618 (7th Cir. 1995). In those

cases, we made clear that gaps in the chain of custody

go to the weight of the evidence rather than the admissibility where there is no evidence of tampering. Id.

Simmons’ claims—particularly regarding the chain of

custody—are not promising for him, but the appeal fails

for a more glaring reason. We need not even consider

whether the district court erred in admitting the gloves

or in allowing testimony as to the similarity to the

photos, because any possible error was harmless given

the defendant’s own testimony in the case. It is wellestablished that evidentiary errors are subject to harmless error inquiry. United States v. Cooper, 591 F.3d 582, 590

(7th Cir. 2010); United States v. McGowan, 590 F.3d 446, 456
6 No. 08-3603

n.1 (7th Cir. 2009). An error is harmless if the reviewing

court is convinced that the jury would have convicted

even absent the error. Id. Because Simmons’ own testimony established that he possessed gloves when arrested,

and that those gloves were the ones used in the bank

robbery, the alleged errors could not have affected

the outcome.

Simmons maintained at the trial that he was not one

of the persons who robbed the bank. He stated, however,

that he knew who those individuals were because he

received a phone call from one of them letting him

know what happened. Simmons testified that they had

borrowed his car earlier in the day and they told him

that they took his gloves that he kept in the car. They

told him that they used those gloves in the robbery, and

that they had later discarded the gloves along with the

gun and white shirt. Simmons then testified that he

decided to retrieve the gloves because he feared that his

DNA would be in the gloves and would draw him into

the crime. He therefore proceeded to the wooded area

where they had stated the gloves were abandoned and

he reclaimed the gloves, but stated that he left the gun

where it had been discarded. He declared that the

police spotted him as he was trying to flee the area, and

that he ran because he knew who committed the crime

but did not want to tell the police their names because

he was protecting his family. The police caught him

before he reached his grandmother’s house and arrested

him.

Simmons thus testified that the gloves in his possession

at the time of the arrest were in fact the gloves that had
No. 08-3603 7

been used in the robbery. He cannot now complain that

Merica’s testimony improperly tied those gloves to the

ones in the bank photo, given that he has admitted at

trial that the gloves are in fact the ones in the bank

photo. Nor was their admission into evidence potentially harmful, given that he has acknowledged that the

gloves which belonged to him and were in his possession at the time of the arrest were the ones used in the

bank robbery. Simmons asked the jury to resolve not

whether the gloves were his, but whether they were

used by someone other than himself at the bank and then

retrieved by him. The testimony by Merica and the admission of the gloves into evidence did not impact that

determination in any way. Because the government’s

evidence challenged by Simmons merely supported

Simmons’ own theory of the case, this is as clear a case

of harmless error as we are likely to see. The decision of

the district court is AFFIRMED.

3-30-10