In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 07-1555

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JAMES L. LESHORE,

Defendant-Appellant.

____________

Appeal from the United States District Court 

for the Northern District of Indiana, Fort Wayne Division.

No. 1:05-CR-57-TS—Theresa L. Springmann, Judge.

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ARGUED FEBRUARY 20, 2008—DECIDED SEPTEMBER 11, 2008

____________

Before EASTERBROOK, Chief Judge, and BAUER and WOOD,

Circuit Judges.

WOOD, Circuit Judge. This case illustrates the importance of the standard of review that an appellate court

applies to asserted trial error. When an appellant wants

to complain about an error for the first time on appeal,

we ordinarily require the complaining party to demonstrate plain error. See FED. R. CRIM. P. 52(b). If the challenged ruling is one that we would have reviewed only
2 No. 07-1555

for abuse of discretion if a proper complaint had been

made in the district court, the appellant’s job is especially

difficult. That, in a nutshell, is the burden that appellant

James LeShore has shouldered here. Finding no reversible

error, we affirm his conviction and sentence for bank

robbery.

I

We draw our account of the facts from the district court’s

opinion, supplementing it with other information as

needed. On the morning of September 13, 2005, at about

9:30 a.m., the First Source Bank in Fort Wayne, Indiana,

was robbed by two African-American males wearing

white cloth masks. One of them brandished a gun. With a

bag full of money ($5,600, along with some bait money

and a dye pack), the robbers jumped into a blue van

and drove away. The van was later found abandoned in a

cemetery near a wooded area; its plates were registered to

Jeannie Colon and its steering column had been punched.

An eyewitness on the other side of the woods saw two

African-American men run from the woods into a burgundy truck and drive away. Along the path from the

van through the woods to where the eyewitness saw the

men jump into the truck, police found a sleeve from

a white t-shirt; the rest of the t-shirt was not found.

LeShore does not challenge any of the facts we have

recounted thus far. At this point, however, his story

diverges from that of the police officers who eventually

arrested and questioned him. Officer Fritz Rommel testified that he picked up LeShore in front of a house belong-
No. 07-1555 3

ing to Lindsey Green, took LeShore to the police station,

and then escorted him into the interview room. Rommel

has no particular expertise in recognizing the effects of

drugs, but he does have some training in recognizing the

effects of alcohol. He stated that LeShore did not stumble,

slur his speech, disobey commands, or act strangely.

Rommel did not smell alcohol on LeShore’s breath. After

a 40-minute wait, Special Agent Restituto Loran interviewed LeShore; the interview was recorded on a DVD.

Loran did have training in recognizing and dealing with

persons under the influence of both alcohol and drugs.

Loran testified that he did not notice any signs of intoxication, although he did smell pepper spray (which is common after a dye-pack explosion). Loran gave LeShore a

form explaining his Miranda rights, and then LeShore

read them aloud and signed the form. Loran then questioned LeShore, who recounted that he left his fiancée’s

house at 10:00 a.m. and found a bag of money already on

the back porch of Green’s house. LeShore said that he

never smoked any crack and was not impaired in any

way. After listening to LeShore, Loran and several other

officers confronted LeShore with incriminating evidence

including statements from Green, surveillance photos

from the bank, evidence connecting him to his fiancée’s

van, and the dye pack. Throughout the interview, LeShore

remained attentive and answered questions appropriately.

Before trial, LeShore moved to suppress the statements

he made during his interrogation and the associated DVD,

alleging that his Miranda waiver was invalid because he

was heavily intoxicated at the time. At the suppression

hearing, LeShore tried to provide a basis for that motion,
4 No. 07-1555

expanding on (and changing slightly) his previous narration. He testified that he woke up and left the house of his

fiancée, Jeannie Colon, before 8:00 a.m. that morning and

headed for a drug house, stealing a bike along the way.

He estimated that this trip took him an hour-and-a-half

to two hours. At the drug house, he smoked about

2.5 grams of crack and drank four or five beers. He then

proceeded to Lindsey Green’s house, where he smoked

another 1.5 grams of crack, drank several shots of vodka,

and cracked open a beer. He claims that he saw a pile

of money on the table in Green’s house and started to

pocket some of it. Green spotted him doing this and

kicked him out. He began walking back to the drug house,

saw a police car, turned around, and left the money on

the back porch of Green’s house in a bag. (The last of these

details was corroborated by an eyewitness; police discovered some of the bait money from the bank in the bag.)

He was arrested in front of Green’s house around noon.

The district court found that LeShore’s testimony at the

suppression hearing was not credible and that he was not

impaired when he gave his Miranda consent. The court

therefore denied his motion to suppress the DVD of the

questioning and various inculpatory statements he had

made. At trial, LeShore was found guilty and convicted

of bank robbery with a dangerous weapon, 18 U.S.C.

§ 2113(a) & (d), and brandishing a firearm during a crime

of violence, 18 U.S.C. § 924(c). He was sentenced to a

total of 14 years’ imprisonment. 

On appeal, LeShore challenges the admission of the DVD

of the interrogation and a list of bait money used at the
No. 07-1555 5

bank; he also asserts that even if the individual errors

are insufficient to warrant a new trial, there is cumulative error that does.

II

LeShore attacks the admission of the DVD of his interrogation on two grounds: first, that the DVD was unfairly

prejudicial and insufficiently probative, warranting

exclusion under FED. R. EVID. 403, and second, that he

was intoxicated during the interview, which vitiated his

Miranda consent and rendered the statements he made

during questioning inadmissible.

A. Rule 403 Prejudice

Rule 403 allows the district court to exclude relevant

evidence “if its probative value is substantially outweighed

by the danger of unfair prejudice . . . .” Ordinarily, we

review a district court’s evidentiary ruling only for abuse

of discretion; when it comes to the necessarily contextsensitive evaluation of a claim under Rule 403, “we give

special deference” to the district court’s findings and

reverse only when “no reasonable person could take the

view adopted by the trial court[.]” United States v. Cash,

394 F.3d 560, 564 (7th Cir. 2005).

LeShore’s position is complicated here, however, by the

fact that this objection was never raised at trial, which

means he must show plain error. (The Government argues

that LeShore did not merely forfeit this argument but
6 No. 07-1555

affirmatively waived it. Waiver would extinguish appellate review altogether. See United States v. Murry, 395

F.3d 712, 717 (7th Cir. 2005). No such waiver occurred,

however. If the pretrial ruling is definitive, as this one

was, no trial objection is necessary to preserve the objection for review. See Wilson v. Williams, 182 F.3d 562, 566

(7th Cir. 1999).) “Before we may correct an error not

raised at trial, we must find (1) that there is error, (2) that

it is plain, and (3) that it affects substantial rights. . . . Once

these three conditions have been met, we may exercise

our discretion to correct the error if it seriously affects

the fairness, integrity, or public reputation of judicial

proceedings.” United States v. James, 464 F.3d 699, 709 (7th

Cir. 2006) (citation omitted); see generally United States

v. Olano, 507 U.S. 725 (1993).

It is here that we must give some force both to the

abuse of discretion standard of review that would have

applied had LeShore made a proper objection and to the

plain error standard that applies to forfeited arguments.

Because LeShore never objected at trial on the grounds he

is now presenting, the district court did not have a

chance to exercise its discretion at all. LeShore therefore

must persuade us that it would have been an abuse of

discretion for the district court to have rejected his

position—indeed, such a serious abuse of discretion that

the plain error standard is satisfied. Given the

special deference paid to a district court’s assessment of a

Rule 403 argument, this is an extremely difficult showing

to make. LeShore must essentially show that the evidence was so obviously and egregiously prejudicial that

the trial court should have excluded it even without any
No. 07-1555 7

request from the defense, and that no reasonable person

could argue for its admissibility.

LeShore’s arguments do not pass this high bar. On the

issue of the DVD’s probativeness, LeShore argues that the

video contained no inculpatory statement that could be

used for impeachment, because he did not testify at trial.

The Government points out, however, that the DVD

linked LeShore to some of the evidence from the crime

scenes, it corroborated several witness accounts, and it

established LeShore’s consciousness of his own guilt.

These are all reasonable suggestions. LeShore admits on

the video that he is left-handed, which matches the description of the gunman provided by eyewitness

accounts and shown in the video surveillance films

from the bank. LeShore admits on the video that Jeannie

Colon is his fiancée, and that admission links him to the

van in the surveillance video. In the interview LeShore

stated that the van was parked in front of his apartment

right before the robbery; this concession weakens the

inference that another person stole it and used it in the

robbery. The video interview corroborates the testimony

of an eyewitness, Green’s neighbor, who saw LeShore put

a bag on the corner of Green’s back porch. Finally, in the

interlude before the interview began LeShore checked

himself over, which the Government claims shows a

consciousness of guilt in light of the exploding dye

pack. He also carefully changed his story to place himself

at his own apartment when the robbery took place. (The

district court found that this story had changed by the

time of the suppression hearing.)
8 No. 07-1555

LeShore argues that the DVD depicts him in the posture

of someone who has already been deemed guilty, and thus

it was too prejudicial to use. (Indeed, Special Agent

Loran mentioned that they approached this interrogation

with LeShore’s presumptive guilt in mind—hardly surprising in itself, given the fact that the police had probable

cause to arrest him.) The real problem here is not that

the police approached their suspect as if he might be

guilty; it is that during the course of describing the interrogation, the officer might put impermissible hearsay

evidence before the jury. The Government points to

other cases allowing mug shots and evidence of prior

criminality to be admitted, but all of the evidence in these

other cases provided crucial links in the Government’s

case, such as identification of the defendant. See, e.g.,

United States v. Rodriguez, 925 F.2d 1049, 1054-55 (7th Cir.

1991) (upholding admission of mug shot that provided

positive identification); United States v. Richardson, 562

F.2d 476, 478-79 (7th Cir. 1977) (affirming admission of

photograph and fingerprint card because they identified

defendant). To the extent the evidence from the DVD in

this case is probative, it is primarily as corroborative

material.

Even if LeShore is correct that the DVD did not contain

essential evidence, however, it is far from unreasonable

to think that it is probative—and certainly not so plainly

unreasonable that the district court should have barred

the evidence even without a motion. That is enough, under

the standard of review that governs here. This is not a

situation in which the district court necessarily would

have abused its discretion in admitting the evidence, and
No. 07-1555 9

thus LeShore’s argument fails on the first step of the

plain error analysis.

B. Intoxication and Miranda Consent

LeShore also argues that he was intoxicated during the

interview recorded on the DVD, and that he was thus in

no condition to provide a knowing waiver of his Miranda

rights. (Once again, the Government urges us to find

waiver, but we are satisfied that LeShore did not affirmatively give up this point.) The ultimate question whether

a confession was voluntary is one of law, and thus our

review of that issue is de novo. Miller v. Fenton, 474 U.S. 104,

110 (1985). We examine the totality of the circumstances

to assess “whether the defendant’s will was overborne,”

United States v. Hocking, 860 F.2d 769, 774 (7th Cir. 1988),

and we review factual determinations for clear error.

United States v. Haddon, 927 F.2d 942, 945 (7th Cir. 1991).

“[W]hen the interrogating officers reasonably should

have known that a suspect is under the influence of

drugs or alcohol, a lesser quantum of coercion may be

sufficient to call into question the voluntariness of the

confession.” Id. at 946. In addition, a valid waiver of

Miranda rights is necessary before a custodial statement

may be admitted. Miranda v. Arizona, 384 U.S. 436, 476

(1966). A valid waiver must be made knowingly, intelligently, and voluntarily. Id. at 444. A valid waiver is

necessary but not sufficient for a voluntary statement: a

statement may still be found involuntary under the

totality of the circumstances even though the waiver was

valid. Baskin v. Clark, 956 F.2d 142, 145 (7th Cir. 1992).
10 No. 07-1555

LeShore runs into problems at the threshold: the district

court specifically found that “[LeShore] was not under

the influence of any drugs affecting his capacity to understand what was going on or to intelligently assess his

situation.” This was a simple credibility determination.

LeShore said that he had smoked 2.5 grams of crack

before going to Green’s and had another 1.5 grams with

Green. Green admitted that she had taken a hit but not

enough to cloud her thinking. Special Agent Loran testified that nothing he saw alerted him to a present state of

intoxication during the interview. Loran was not impeached at trial, and LeShore offers no reason why we

should second-guess the district court’s decision to

credit Agent Loran’s testimony. The district court was

negatively impressed by LeShore because his story

changed between the interview and his testimony at the

suppression hearing, and he had twice been convicted of

false informing. If LeShore was not under any influence

that would diminish his capacity, then there is no circumstance that would lead us to question the validity

of his Miranda waiver, even on de novo review.

III

The second piece of evidence LeShore questions is the

list of bait money that was introduced at trial. The term

“bait money” refers to a packet of bills the serial numbers

of which a bank pre-records. The bank does not circulate

the bait money; the only way it leaves the bank is if it is

stolen. Thus, if a bill from a bait money list turns up, it was

most likely stolen at some point. A bait money list is a
No. 07-1555 11

writing offered to prove the truth of the matter asserted—that the money in evidence was part of a bait

money pack. This is classic inadmissible hearsay, FED. R.

EVID. 801, unless it can be shown to fall into one of the

enumerated exceptions recognized in FED.R. EVID. 803. We

review the district court’s interpretation of the Federal

Rules of Evidence de novo, American Automotive Accessories

v. Fishman, 175 F.3d 534, 540, n.1 (7th Cir. 1999), but we

review decisions to admit or exclude evidence for abuse

of discretion, United States v. Robbins, 197 F.3d 829, 837 (7th

Cir. 1999). The Government relied on the business

records exception to the hearsay rule, see FED. R. EVID.

803(6), to support admission of the bait money list. The

district court accepted that argument and let the list in,

and LeShore now asserts that this was error.

A document falls within the business records exception

if “1) the acts recorded therein were reported by a person

with knowledge, 2) it was the regular practice of the

[business] as a regularly conducted business activity to

record such acts, 3) the acts were recorded at or near

the time of their occurrence, and 4) the documents are

properly authenticated unless the source of information or

the method or circumstances of preparation indicate lack

of trustworthiness.” Wheeler v. Sims, 951 F.2d 796, 802 (7th

Cir. 1992) (citations and quotations omitted). The person

who testifies to the business record must be the custodian

of the documents, the person who compiled them, or

“have knowledge of the procedure under which the

records were created,” United States v. Wables, 731 F.2d

440, 449 (7th Cir. 1998).
12 No. 07-1555

LeShore’s challenge to the bait money list is that even

though the bank regularly kept this record, it was irregularly compiled (in this case, remade): a new list was

made only after the theft (or loss) of an existing bait

money packet. By its very nature, therefore, LeShore

argues, a bait money list cannot be regularly compiled.

Compilations are generated only when a robber gets

away with the old packet. LeShore also challenges whether

Melinda Bowmar, a bank employee who testified about

the business records, had sufficient personal knowledge

to be a credible witness.

This argument overstates the spirit of both the rule

and the exception. The chief concern with hearsay evidence is that it lacks sufficient indicia of reliability. Even

though the bank did not compile its bait money list regularly, it verified the list three times per year. The Advisory

Committee indicated that regular verification is one of the

indicia of reliability that gave business records the status

of a freestanding exception in the first place. See FED. R.

EVID. 803, 1972 Advisory Cmte. Notes, para. 6. Indeed, all

of the factors suggested by the Advisory Committee as

central to the justification for the exception are met in

this case: systematic checking, regularity and continuity

(giving rise to precision), actual reliance by the business,

and compilation and verification by someone whose duty

it is to do so. Id.

In this case, Melinda Bowmar, a bank employee, testified

that she had personal knowledge of how the list was made,

even though she did not put it together herself. It was her

job to maintain and verify the bait money list, and she
No. 07-1555 13

explained the procedure for creating the list in detail, down

to identifying how the bank tracked the money in different

tellers’ drawers. Her personal knowledge makes her a

“qualified witness” within the contemplation of Rule

803(6), and she substantiated the trustworthiness of the

bait money list by demonstrating how the business regularly verified all of the serial numbers and relied on the

list. Indeed, the list introduced into evidence was the

very one used to identify some of the money LeShore

was caught with.

We find no legal error in the district court’s interpretation of Rule 803 or the business records exception, and no

abuse of its discretion to admit the evidence. (We need

not discuss LeShore’s challenge to the knowledge of

another witness, Ann Dennis, as the district court did not

rely on her.)

IV

Last, LeShore argues that the cumulative error of these

rulings infected his trial in a way that no single error did.

“The cumulative effect analysis requires a petitioner to

establish two elements: (1) at least two errors were committed in the course of the trial; (2) considered together,

along with the entire record, the multiple errors so

infected the jury’s deliberation that they denied the

petitioner a fundamentally fair trial.” Alvarez v. Boyd, 225

F.3d 820, 824 (7th Cir. 2000).

We can reject this argument quickly, because we have

found no error to begin with. LeShore cannot show,
14 No. 07-1555

furthermore, why the district court’s rulings might have

affected the outcome of the trial. The DVD corroborates

the Government’s case, but it was not a central piece of

evidence. Had it been excluded, the case would almost

certainly have come out the same way. Likewise, the bait

money list connects the currency with which LeShore

was caught with the money stolen from the bank. But the

jury was probably even more impressed by the presence

of red dye on his clothes and hands and the surveillance

video. Any error in admitting the evidence on which

LeShore has focused in his appeal was harmless.

* * *

The judgment of the district court is AFFIRMED.

9-11-08