(2004), this Court concluded that the fruit of the poisonous tree doctrine did not require
suppression of the physical fruits of the defendant’s unwarned but voluntary statements. See
United States v. Renken, No. 02 CR 1099, 2004 WL2418293 (N.D. Ill. Oct. 27, 2004); see also
United States v. Renken, No. 02 CR 1099, 2004 WL 2005833 (N.D. Ill. Aug. 26, 2004); United
States v. Renken, No. 02 CR 1099, 2004 WL 557364 (N.D. Ill. Mar. 22, 2004). Defendant has
offered no additional basis for disturbing this ruling and this Court finds no reason to do so.

b. Admission of Testimony by Witness as Expert

In support of his motion for a new trial, Defendant contends that this Court erred by
permitting Bannockburn Police Chief Kevin Tracz to testify as an expert regarding the search
that he conducted with his police bloodhound, Daisy Mae. In support of this assertion, Defendant
notes that Chief Tracz admitted he was not an expert dog handler or a dog trainer. The
government contends that this Court correctly decided, at the conclusion of an evidentiary
hearing on this issue, that Chief Tracz was qualified to present expert testimony as Daisy Mae’s
dog handler and with respect to his handling of her on November 13, 2002.

Under the Federal Rules of Evidence, expert testimony is admissible if offered by “a
witness qualified as an expert by knowledge, skill, experience, training, or education” and “‘if (1)
the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable
principles and methods, and (3) the witness has applied the principles and methods reliably to the
facts of the case.” Fed. R. Evid. 702. The Seventh Circuit has recognized that “Rule 702
specifically contemplates the admission of testimony by experts whose knowledge is based on
experience.” Smith v. Ford Motor Co., 215 F.3d 713, 718 (7" Cir. 2000) (internal citations

omitted); see also Advisory Comm. Notes to Rule 702. “In certain fields, experience is the

5.


Conclusion

For the foregoing reasons, Defendant’s motion for judgment of acquittal or, in the alternative,

a new trial is denied.

Enter:

Oat Coe,

David H. Coar
United States District Judge

Dated: April 19, 2005

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an expert; erred in denying defendant’s motion for mistrial during the testimony of defendant’s
ex-wife; and erred in denying defendant’s Rule 29 motion for judgment of acquittal at the close
of the government’s evidence. The government disagrees, contending that the verdict was not
against the manifest weight of the evidence.
1. Standard

The remedy of a new trial is unusual. The Seventh Circuit has stated that, in order for a
court to grant a Rule 33 motion for a new trial, “the evidence must preponderate heavily against
the verdict, such that it would be a miscarriage of justice to let the verdict stand.” United States v.
Reed, 875 F.2d 107, 113 (7" Cir. 1989) (citation omitted). When, as here, a defendant requests a
new trial based on insufficiency of evidence, the Court should grant the motion “only if the
verdict is against the manifest weight of the evidence.” United States v. Alanis, 265 F.3d 576,
591 (7"" Cir. 2001) (quoting Tullis v. Townley Eng'g & Mfg. Co., 243 F.3d 1058, 1062 (7" Cir.
2001).

2. Analysis

Mr. Renken raises several grounds for his motion for a new trial, which are addressed in
turn below. All fail to establish that it would be a miscarriage of justice to let the jury’s guilty
verdict stand.

a. Denial of Suppression of Physical Evidence

Prior to trial, Defendant filed a motion seeking to suppress evidence seized during the
search of his house and sport-utility vehicle. This Court held an evidentiary hearing on this issue.
This Court then ruled that the search did not violate the Fourth Amendment because it was by

consent, albeit implied consent. In addition, pursuant to United States v. Patane, 124 S. Ct. 2620

4.


predominant, if not sole, basis for a great deal of reliable expert testimony.” United States v.
Conn, 297 F.3d 548, 556 (7" Cir. 2002) (quoting Advisory Committee Notes to Rule 702).

If the witness’ testimony is based entirely or in large part on experience, then the witness
must explain how that experience leads to his or her conclusion, why it is a sufficient basis for
the conclusion, and how it is reliably applied to the facts. Advisory Comm. Notes to Rule 702.
This Court held a substantial evidentiary hearing on the question of Chief Tracz’s testimony and
determined that he was qualified to testify as an expert on the behavior of his trained
bloodhound, Daisy Mae. Defendant offers no argument now to persuade the Court that its ruling
was erroneous.

c Denial of Motion for Mistrial Based on Witness Testimony

Finally, Defendant contends that this Court erred in denying his motion for a mistrial
made during the testimony of Defendant’s ex-wife, Mary Sopata. Defendant contends that “[a]t
the government’s direction, Ms. Sopata testified directly in violation of the court’s motion in
limine [ruling] and FRE [sic] 404(b).” (Def.’s Mot. at 2.) The government contends that it did
not anticipate Ms. Sopata’s testimony because it contradicted what she had told the government
during pre-trial preparation. Moreover, the government contends that Ms. Sopata’s testimony was
referenced in an FBI 302 form which had been provided to Defendant during discovery, and that,
in any event, the testimony did not constitute evidence regarding “‘similar acts” under Rule
404(b).

While on the stand, Ms. Sopata testified that Mr. Renken once used the .22 Ruger

revolver originally purchased by his mother to scare a deer. The defendant moved for a mistrial.

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
UNITED STATES OF AMERICA )
)
Plaintiff, )
) No. 02 CR 1099

v. )

) HONORABLE DAVID H. COAR
HENRY C. RENKEN )
)
Defendant. )

MEMORANDUM OPINION AND ORDER

Defendant Henry C. Renken was convicted after a jury trial of bank robbery and use of a
dangerous weapon in connection with the commission of said offense, in violation of 18 U.S.C.
§§ 924(c)(1)(A), 2113(a) & (d). Defendant’s motion for judgment of acquittal and, in the
alternative, a new trial is currently before this court.

For the reasons discussed below, Defendant’s motion is denied.

I. BACKGROUND!

Henry C. Renken proceeded to a jury trial on a two-count indictment charging him with
one count of bank robbery, 18 U.S.C. § 2113(a) and (d), and one count of use of a firearm in
relation to a crime of violence, 18 U.S.C. § 92(c)(1)(A). After a trial that lasted approximately
one week, a jury found the defendant guilty on both counts. Prior to and during the course of the

trial, the defendant made written and oral motions for suppression of physical and testimonial

' The facts of this case have been set forth extensively in prior opinions and this Court
will assume familiarity therewith.

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The Court denied that motion but struck the witness’ testimony from the record and instructed
the jury to disregard it.

Even if the Court had erred in denying the motion for a mistrial, a new trial would only be
granted if the error was not harmless. United States v. Mayes, 370 F.3d 703, 709 (7" Cir. 2004).
Evaluating whether an error is harmless requires consideration of the importance of the
testimony, the cumulative effect of the evidence, whether there was other evidence to corroborate
the witness, and the strength of the government’s case. United States v. Hernandez-Rivas, 348
F.3d 595, 600 (7" Cir. 2003). In this case, the government introduced documentary evidence that
the defendant’s mother owned the gun that was found in the woods near the bank. Eyewitness
testimony established that a reasonable finder of fact could determine that this gun matched the
gun used during the robbery. In addition, Ms. Sopata’s entire testimony constituted only a brief
segment of the evidentiary portion of the trial. The parties did not highlight the contested portion
of her testimony. The Seventh Circuit has held that mistrial is not warranted where the erroneous
testimony was brief, was not emphasized, and where there was substantial other evidence of
defendant’s guilt. United States v. Mayes, 370 F.3d 703, 709 (7" Cir. 2004). Defendant in the
instant case provides no reason why this Court should disturb its denial of his mistrial motion.

Defendant’s motion for a new trial is denied.


evidence, for a judgment of acquittal and for a mistrial, all of which were denied by this Court.
Defendant now renews his motion for acquittal and a new trial, asserting that this Court erred in
its denial of Defendant’s suppression motion and in denying Defendants prior motions for
acquittal and mistrial.
Il. ANALYSIS

A. Motion for Acquittal

In his motion for judgment of acquittal, filed pursuant to Federal Rule of Criminal
Procedure 29(c), Mr. Renken maintained, in rather telegraphic fashion, that the government
failed to prove beyond a reasonable doubt that he committed the crimes of bank robbery and use
of a firearm during a crime of violence.

1. Standard

Under Federal Rule of Criminal Procedure 29(c), a defendant may move for a judgment
of acquittal or renew such a motion after the jury has been discharged but within either seven
days or such period as the court has set during that seven-day period. Fed. R. Crim. P. 29(c). The
court is to direct acquittal “if the evidence is insufficient to sustain a conviction.” Fed. R. Crim.
P. 29(a). This determination is based on a finding that the relevant evidence, viewed in the light
most favorable to the Government, was sufficient to support a reasonable jury’s conclusion of
guilt beyond a reasonable doubt. American Tobacco Co. v. U.S., 328 U.S. 7871, 787 n.4 (1946);
United States v. Reed, 875 F.2d 107, 111 (7" Cir. 1989). In essence, the court must deny a
motion for judgment of acquittal unless the court, viewing the evidence in the light most
favorable to the government, finds that no rational trier of fact could have found the defendant

guilty beyond a reasonable doubt. United States v. Eberhart, 388 F.3d 1043, 1052 (7" Cir. 2004).

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2. Analysis

Applying this standard to Mr. Renken’s case, this Court notes that the government
presented a substantial case of circumstantial evidence. Over the course of the trial, the
government presented evidence that the defendant fit the physical description of the robber given
by eyewitnesses; that clothes seized in the defendant’s home were substantially similar to those
wor by the robber as viewed on the bank’s surveillance videotape; that the defendant’s wife’s
Chevrolet Blazer, with the defendant’s wallet, containing his driver’s license and credit cards, ,
inside, was found in very close proximity to items related to the robbery; that the bicycle believed
to be the defendant’s mode getaway of getaway transportation was identical to that of the
defendant’s son and that the bicycle was found discarded near the defendant's wife’s sport-utility
vehicle. In addition, the government presented evidence from the defendant’s credit card issuer
that one day before the robbery, the defendant had purchased a pair of black gloves identical to
gloves found with the stolen cash and with the .22 caliber Ruger revolver believed to be used in
the robbery.

This Court finds this was sufficient evidence from which a reasonable jury could
conclude that Mr. Renken committed the crimes with which he was charged. Defendant’s motion
for judgment of acquittal is denied.

B. Motion for New Trial

Federal Rule of Criminal Procedure 33 provides, in relevant part, that “the court may
vacate any judgment and grant a new trial if the interest of justice so requires.” Fed. R. Crim. P.
33(a). Mr. Renken asserts that this Court should grant him a new trial because it erred in denying

defendant’s motion to suppress evidence; erred in allowing one government witness to testify as

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