In the

United States Court of Appeals

For the Seventh Circuit

No. 08-1854

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JOSEPH O. LEWIS,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Indiana, Fort Wayne Division.

No. 07 CR 12—Theresa L. Springmann, Judge.

ARGUED APRIL 10, 2009—DECIDED JUNE 1, 2009

Before BAUER, FLAUM, and EVANS, Circuit Judges.

EVANS, Circuit Judge. In January 2007, three men

robbed a bank in Fort Wayne, Indiana, and Joseph Lewis

was pegged as one of the robbers. Lewis claimed that the

police had the wrong man, but at trial the government

presented evidence to the contrary, including testimony

from his cousin, whose house was the site of Lewis’s

arrest and the arrest of the two other men allegedly

involved in the heist. The jury found Lewis guilty of

armed bank robbery, and he appeals.
2 No. 08-1854

During Lewis’s trial, several bank employees testified

about the day’s events. Although their accounts varied a

bit—which is not at all unusual—this is the story that

emerged. On the afternoon of the robbery, the bank was

infiltrated by three men—one with a gun—who eventually

grabbed money from the vault and one of the drawers.

The first was a shorter black man, of medium build. His

face was covered with a ski mask, he wore latex gloves,

and he had a dark top over a jersey with a number seven

on it. The second bandit was a tall, slender black man, also

wearing a ski mask and equipped with latex gloves.

He was wearing greenish-blue windbreaker pants and

white tennis shoes. The third robber went to the copy

room, where he restrained the assistant manager.

Feeling frightened, the manager kept her eyes closed

during the encounter but testified that she could tell the

robber was black from “his voice.” She also recalled

brushing up against the robber’s clothing, which felt

soft. Another teller caught a glimpse of the fellow in the

copy room and described him as a large man. A bank

surveillance photo showed the torso and legs of one of

the men who was wearing a tan sweatshirt with a dark

stripe down the sleeve. Another teller testified that one

of the thieves had braids or dreadlocks.

With their loot in tow—a modest take of $17,049.92

(compliments to the Tower Bank of Fort Wayne for

being so exact!)—the three fled the bank in a brown car.

Unbeknownst to them, they also left the bank with a

hidden GPS tracking device embedded in a stack of

Jacksons. Police officers received a page when the GPS

unit started to move. It led them to a residential neighbor-
No. 08-1854 3

hood a couple of miles from the bank. They were johnny

on the spot, arriving at the scene in under 10 minutes.

Shortly thereafter, the GPS unit stopped sending out a

signal. The police, however, were able to pinpoint the

house where the GPS stopped emitting its whereabouts.

There, they hunkered down to see what developed.

Nobody came or left from the house until later that

evening. At that time, Lewis’s cousin, Kenyatta Lewis

(who we will refer to as Kenyatta), returned from work to

a big surprise—cop cars lined up in front of his house.

Once he got wind of the situation he gave the police

permission to search his home. Inside, the police found

three men. One was a shorter black man who had a medium build. The second was a tall, slender black man

with braids. The last, Lewis, was a stocky black man. The

officers also found a gun, some $10,000 of the $17,000+

dollars taken from the bank, and the bank’s broken GPS

unit. In the attic and in the master bedroom the police

discovered various items of clothing—including three

knit ski masks or hats, a jersey with the number seven

on it, white Nike tennis shoes, blue nylon pants, and a

striped, tan sweatshirt—which matched the clothes

described by tellers at the bank. Parked in the garage

officers found a silver car that was registered to Lewis’s

wife. In the trunk was a box of unused vinyl gloves, and

in the back seat officers discovered a discarded pair of

the gloves. DNA testing later linked them to one of the

men hiding out in Kenyatta’s home. Later, the police

found a brown car, matching the description of the getaway car, a few blocks from the bank. It apparently was

ditched by the robbers and another car (probably the

silver one) was used to get to Kenyatta’s house.
4 No. 08-1854

Kenyatta testified that he had been at work on the day

of the robbery and that nobody, including Lewis, had

permission to be at his home. Kenyatta did, however,

waver on whether Lewis had a way into the garage. At

first, he testified that he had given Lewis the garage

door opener over Thanksgiving, but on cross-examination

he denied ever doing so. In any event, the garage was

easily accessible. Kenyatta explained that he left a spare

opener in his unlocked car, which was parked in the

driveway. He also testified that he never gave Lewis the

key to the door leading from the garage into the house.

Before the robbery, Kenyatta testified, the door was in

fine condition. The same could not be said after the

robbery occurred—the door had been kicked in. Kenyatta

also testified that the clothes taken from his home

were not his, except for the tan, striped sweatshirt, which

(perhaps obviously) he hadn’t worn that day.

Lewis was interrogated by police officers later that

evening, two of whom also testified at the trial. According

to the officers, Lewis’s story shifted throughout the

interrogation. At first, Lewis denied that he was

involved in the robbery. Later, he admitted that he was

the “look out,” and that he scoped out the bank a few

days before the robbery occurred. Eventually, he

claimed that on the day of the heist he met the three

robbers (which included the other two men found at

Kenyatta’s home) at a gas station near the bank. He

asserted that he told the others that he no longer wanted

to be involved. He eventually parted ways with the

other three and headed back to Kenyatta’s. Right as he

reached Kenyatta’s home, the three “real” robbers came
No. 08-1854 5

However, the DVD, which is part of the record, is just over 1

four hours long. One of the officers who interrogated Lewis

and testified during the trial also stated that the interview

lasted “over four hours,” suggesting counsels may have

been mistaken about the length of the DVD.

screeching into the driveway. Somehow, the others managed to drive to the bank, rob it, and reach Kenyatta’s

home at the same time Lewis arrived. Lewis claimed

that he reached Kenyatta’s at 1:57 p.m, although one of

the officers pointed out that he (along with several other

officers) was already there at that time and saw no cars

arriving or leaving. Nonetheless, Lewis claimed that two

of the thieves jumped out, while the third sped off in

the brown getaway car. One of the robbers then kicked

in the door to Kenyatta’s home, and they both hid

there until uncovered by the police hours later.

The entire interrogation was recorded on a DVD. Although the DVD was not played for the jury—we were

told at oral argument that it was six hours long —the

1

unredacted DVD was admitted into evidence. Although

none of the police officers mentioned it while testifying,

Lewis also revealed on the DVD that he was previously

convicted of bank robbery and that several of his

family members were incarcerated. Near the end, he

also said he “aided and abetted” the robbery, another

statement left unmentioned by the officers during trial.

The trial counsel objected to the DVD’s admission, claiming that this last statement was unduly prejudicial and

improper opinion testimony by a lay witness. The

court overruled the objection but informed the jury that
6 No. 08-1854

Lewis was not a legal expert and instructed them that, by

mentioning “aiding and abetting,” Lewis was neither

making a legal conclusion nor admitting to the crime

charged. At the end of the proceedings, the court

reassured the government that the jury could view the

DVD during their deliberations “[i]f they so chose.” Since

the jury room was equipped with a DVD player, they

could “review all of it or portions of it, however they

select.” After deliberating for a little less than four

hours, the jury found Lewis guilty of robbing the bank.

Shortly after the trial, the government wrote to

Lewis’s trial counsel, informing him that it “inadvertently

failed to disclose” the fact that Kenyatta had a felony

conviction for dealing cocaine. Lewis responded by

filing a motion for new trial, claiming that this failure

violated Brady v. Maryland, 373 U.S. 83 (1963). The district

court concluded that the government had indeed suppressed favorable impeachment evidence but nonetheless denied the motion, noting that Kenyatta’s drug

conviction, even if published to the jury, would not have

changed the outcome of the trial. Lewis now appeals,

with the help of newly appointed appellate counsel.

Lewis first argues that the evidence of his prior bank

robbery conviction, which he repeatedly mentioned

throughout the recorded police interrogation, was erroneously admitted. He maintains that the statements only

show his propensity to commit bank robberies, a

purpose at odds with Federal Rule of Evidence 404(b).

Lewis did not testify at trial, thus the statements had no

value as impeaching evidence. We must first address the
No. 08-1854 7

standard of review, which Lewis claims is a thorny

issue. Believing that the objection was made off the

record, Lewis urges us to look to the broader context of

the proceedings to glean the precise nature of trial counsel’s challenge. From that context, he contends, we can

surmise that the Rule 404(b) objection was preserved,

and thus he asks us to review the decision for an abuse

of discretion.

There is no need, and no place, for such speculation. See

United States v. Rollins, 544 F.3d 820, 834 (7th Cir. 2008).

Lewis’s objection to the DVD was made outside of the

presence of the jury, but not outside of the record. There

are two sets of transcripts—one includes just the testimony of the witnesses, while the other is more complete

and recounts the exchange regarding the objection. It’s

clear from the latter transcript that Lewis raised no

Rule 404(b) objection:

Trial Counsel: Well, then the Court’s ruling is that

the DVD is going in?

The Court: The only objection is to that statement

that, yeah, I aided and abetted?

Trial Counsel: Yes, I object to it on the grounds

that it is opinion testimony by a lay witness. It’s Joe

Lewis’s making a legal conclusion. And again, it’s

unduly prejudicial.

The parties discussed the admissibility of the DVD for over

10 pages of transcript and never mentioned Lewis’s

statements regarding his prior robbery conviction. This

failure to object forfeits the argument on appeal, and
8 No. 08-1854

consequently our review is only for plain error. United

States v. Gibson, 170 F.3d 673, 677-78 (7th Cir. 1999). Under

this onerous standard, we will only reverse if “the errors

resulted in an actual miscarriage of justice such that the

defendant probably would have been acquitted but for

the erroneously admitted evidence.” United States v.

Avila, 557 F.3d 809, 820 (7th Cir. 2009) (citations and

quotations omitted).

The strange manner in which the DVD was admitted

into the record precludes Lewis from successfully

meeting this burden. There is no evidence in the record

that the jury ever heard Lewis’s statement about the

prior robbery. No portions of the DVD were played for

the jury. And although two officers testified about the

interrogation, neither mentioned Lewis’s prior conviction. The unredacted DVD—rife with references to the

prior conviction—was nonetheless admitted into evidence, and the jury had access to a DVD player during its

deliberation. But there is no way to know (from the

record before us) if the jury actually watched the DVD, let

alone the parts that include Lewis’s admissions. The

jury deliberated for a little less than four hours, which,

after accounting for even a minimal amount of time

for discussion, suggests that it did not view the whole

thing even if it viewed any portion of it at all. Lewis must

prove that the admission of the evidence resulted in an

“actual miscarriage of justice,” Avila, 557 F.3d at 820

(emphasis added), which is impossible since it’s questionable whether the jury actually watched the DVD.

For the same reason, Lewis’s second challenge fails.

During the interrogation he also mentioned his family’s
No. 08-1854 9

criminal background, and he now argues, for the first

time, that this evidence is unduly prejudicial. Fed. R. Evid.

403. Because this argument was never presented to the

district court, we again review only for plain error, a

standard that Lewis cannot meet since there is no

evidence in the record that the jury reviewed the

relevant parts of the DVD.

This is not to say that the district court properly

admitted the unredacted DVD. Lewis’s statements regarding his prior bank robbery fly in the face of Rule

404(b). The evidence proves nothing beyond Lewis’s

proclivity for robbing banks, which is the exact inference

that the rule is designed to root out. United States v.

Owens, 424 F.3d 649, 653-55 (7th Cir. 2005). And his family’s criminal history was irrelevant as it risked painting

Lewis as just another member of a family that’s not

adverse to dabbling in criminal escapades. During oral

argument here, the AUSA (who also tried the case) could

not adequately explain why she declined to redact the

DVD before seeking to admit it into evidence, or why

she didn’t simply play the important snippets of the

interrogation during the trial. But the government’s

incomprehensible strategy does not excuse trial counsel’s

failure to object to such damaging evidence. While we

cannot reverse based on this error, we leave open for

another day the inquiry into trial counsel’s effectiveness.

Lewis takes one last stab at the DVD. At one point in

the interrogation, Lewis mentioned that he aided and

abetted the bank robbery. Lewis emphasizes his lack of

legal expertise and contends that his untrained conclusion
10 No. 08-1854

was misleading and unduly prejudicial. Because an

objection was lodged in the district court, we review this

matter for an abuse of discretion. United States v. Price,

418 F.3d 771, 779 (7th Cir. 2005). Again, Lewis must

contend with the fact that the jury may not have even

heard the “aiding and abetting” statements on the DVD.

But here he has an additional hurdle to overcome. In

response to the objection, the court instructed the jury

that Lewis was not trained in the law and that any statement about aiding and abetting should not be taken as a

legal conclusion or an admission of the elements of the

offenses charged. Absent any evidence to the contrary, “we

presume that the jury limited its consideration of the

testimony in accordance with the court’s instruction.”

United States v. Mallett, 496 F.3d 798, 802 (7th Cir. 2007).

Lewis does not address the limiting instruction, let alone

point to anything that would rebut this presumption;

therefore, we conclude that the district court committed

no reversible error.

Finally, Lewis asks us to review the district court’s

denial of his motion for a new trial based on the government’s failure to disclose Kenyatta’s prior felony conviction. We review the district court’s denial of the

motion for an abuse of discretion, viewing the evidence

in the light most favorable to the prevailing party, in

this case the government. United States v. Warren, 454

F.3d 752, 759 (7th Cir. 2006).

In order to win a motion for a new trial based on a Brady

violation, the defendant must establish that the prosecution suppressed impeaching or exculpatory evidence
No. 08-1854 11

material to the case. The government does not dispute that

it withheld favorable impeachment evidence. The focus,

then, is on whether the evidence is material or, more

precisely, whether its timely disclosure would have

produced a different verdict. United States v. Wilson, 481

F.3d 475, 480 (7th Cir. 2007). Whether impeachment

evidence is material depends on a number of factors,

most importantly the strength of the case against the

defendant.

Kenyatta’s testimony is not the best, or only, evidence

of Lewis’s guilt. Kenyatta explained that Lewis did not

have access or permission to be at his house on the day

of the robbery. But even if that testimony was discredited,

it would do little to alter the strength of the government’s case. True, Kenyatta’s testimony undercuts

Lewis’s version of the day’s events—Lewis maintained

that he was going to his cousin’s home to watch cable

television when the robbers burst in. But Kenyatta’s

testimony was far from the only evidence to undermine

Lewis’s side of the story. Lewis himself, during the interrogation, acknowledged that Kenyatta had no idea that

he was going to be there. What’s more, the GPS unit

directed police, within minutes of the robbery, to

Kenyatta’s home. There, the police found three men,

including Lewis, who matched the general descriptions

of the three bank robbers, along with money taken from

the bank. This beeline escape suggests that Lewis was

in cahoots with the others. Lewis never explains why

the robbers would come to Kenyatta’s house—whose

connection to the group was through Lewis—to seek

refuge. There, the police also found a gun and three sets
12 No. 08-1854

of clothes, matching descriptions of the clothes worn by

the robbers. Additionally, the police found a box of

vinyl gloves—like those used by the robbers—in the

silver car, along with a pair of gloves containing one of

the robber’s DNA. Add to this the broken GPS unit and

the evidence becomes very convincing. On top of this

circumstantial evidence, Lewis admitted that he scoped

out the bank prior to the robbery. Taking this evidence

in the light most favorable to the government, as we

must, we find that the government’s inadvertent withholding of impeaching evidence regarding Kenyatta’s

drug conviction did not prejudice Lewis.

Accordingly,the judgment ofthe district court is AFFIRMED.

6-1-09