States v. Haddad, 10 F.3d 1252, 1258-59 (7 Cir. 1993). The
government introduced portions of Mr. McCarter’s statement
concerning his work history. Specifically, Agent Burke had asked
if Mr. McCarter had ever worked in a car detailing business or car
wash, and asked Mr. McCarter to list his employment history from
2003 back to the mid-1990s. Mr. McCarter wanted to also introduce
exculpatory portions of his statement, denying any involvement with
the September 1998 robbery attempt. The exculpatory portions of
Mr. McCarter’s statement neither qualify or explain the portions
concerning his work history. Further, exculpatory statements are
not more credible just because they are made contemporaneously with
self-inculpatory statements. Williamson v. United States, 512 U.S.
594, 599-600 (1994). The statements were properly excluded.

Mr. McCarter’s seventh argument is that the government
improperly withheld information about an FBI agent’s threat to beat
the defendant. Mr. McCarter alleges that immediately before he
gave his statement to police, Agent Burke threatened to beat him.
He argues that the failure of the government to tell him about this
alleged threat, which was made directly to Mr. McCarter, was
suppression of evidence that violated his rights under Brady v.
Maryland, 373 U.S. 83 (1963). Evidence is considered suppressed if
“(1) the prosecution failed to disclose the evidence before it was
too late for the defendant to make use of the evidence, and (2) the

evidence was not otherwise available to the defendant through the


Mr. McCarter’s final argument is that the court erred by not
holding a hearing on lost evidence during jury deliberation. No
evidence was lost during jury deliberation. Some exhibits were
mistakenly removed by a juror after the jury had reached and
rendered a verdict. (They were returned.) No possibility of jury

prejudice existed.

ENTER ORDER:

EP Z

Aine, Brechbe

Elaine E. Bucklo
United States District Judge

Dated: March “2, 2004


beyond a reasonable doubt. Mr. McCarter’s proposed instruction
would have been duplicative of the charge.

Mr. McCarter’s ninth argument is that the court erred in
denying his request for a jury instruction on eyewitness testimony.
Where eyewitness testimony is a central issue, the court must give
a jury instruction concerning the reliability of such
identification. United States v. Anderson, 739 F.2d 1254, 1258 (7
Cir. 1984). However, eyewitness identification was an issue in
this case, as the two witnesses to the crime specifically testified
that they could not identify Mr. McCarter from their observations
on September 1, 1998.

Mr. McCarter’s tenth argument is that the court improperly
denied his Rule 29 motion for judgment of acquittal. He argues
that no effect on interstate commerce was shown. In order to bring
a robbery within its prosecutorial reach, the government need only
show an “actual, if de minimis, effect, or, where there is no
actual effect, a realistic probability of an effect, on interstate
commerce.” United States v. Peterson, 236 F.3d 848, 851-52 (7%
Civ. 2001). If Mr. McCarter had successfully completed his crime,
he would necessarily have affected interstate commerce by forcing
his victim to withdraw funds using an ATM. The connection to
interstate commerce is not severed because Mr. McCarter was unable

to complete his crime.


exercise of reasonable diligence.” United States v. O’Hara, 301
F.3d 563, 569 (7° Cir. 2002). The evidence indicated by Mr.
McCarter fails this test, as evidence of any threats made to him
was equally within his possession as that of the government.

Mr. cCarter’s eighth argument is that the court erred in
denying his proposed jury instruction on his theory of defense. A
defendant is entitled to a jury instruction on his theory of
defense when “(1) the proffered instruction is a correct statement
of the law; (2) the defendant’s theory is supported by the
evidence; (3) the asserted defense theory is not already part of
the charge; and (4) the failure to include the instruction on the
defendant’s theory would deny him a fair trial.” United States v.
Payne, 226 F.3d 792, 794 (7° Cir. 2000). Mr. McCarter requested
a jury instruction about his theory of defense that read as
follows: “If the only identification evidence is the defendant’s
fingerprint on the victim’s car, the prosecution must prove beyond
a reasonable doubt that the fingerprint was placed there during the
commission of the offense.” This proposed instruction fails the
third prong of the test. A jury instruction concerning the charge
of attempted robbery was given. In that charge, the jury was
instructed repeatedly that the government had to prove that Mr.
McCarter, the defendant, committed the acts alleged. The jury was

also specifically instructed that the government’s proof had to be


government also argued that the fingerprints on the victim’s car
window must have been left the day of the robbery, because heat,
light, and friction would have damaged or destroyed earlier prints.
This argument was based on testimony from the fingerprint expert as
to what would affect existing prints and on reasonable inferences
about the conditions the victim’s car was exposed to at the end of
a Chicago summer. The government made this argument in response to
defense counsel’s argument that the print on the victim’s car
window could have been left at any time, not just that day.
Prosecutors may draw reasonable inferences from the evidence before
the jury. United States v. Waldman, 50 F.3d 1379, 1383 (7 Cir.
1995).

Mr. McCarter’s fifteenth argument is that the court erred by
not ruling on his Rule 29 motion for judgment of acquittal at the
close of the government’s case. Rule 29(a) of the Federal Rules of
Criminal Procedure provides that, at the close of the government’s
case, “the court on the defendant's motion must enter a judgment of
acquittal of any offense for which the evidence is insufficient to
sustain a conviction.” However, Ruie 29(b) provides that, at the
court’s discretion, it may reserve judgment on such a motion until
after the jury begins deliberation or even after the jury has
reached a verdict. The court did not err by deferring a ruling on

Mr. McCarter’s motion.


Minute Order Form(06/97)

United States District Court, Northern District of Illinois

Name of Assigned Judge Elaine E. Bucklo Sitting Judge if Other
or Magistrate Judge than Assigned Judge
CASE NUMBER 03 CR 835-1 DATE 3/3/2004
CASE USA vs. McCarter
TITLE
[in the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.]
DOCKET ENTRY:
qd) oO Filed motion of [ use listing in “Motion” box above.]
(2) oO Brief in support of motion due
(3) Oo Answer brief to motion due . Reply to answer brief due
(4) o Ruling/Hearing on set for at
(5) oO Status hearing[held/continued to] [set for/re-set for] on set for at
(6) oO Pretrial conference[held/continued to] [set for/re-set for] on set for at :
1) oO Trial[set for/re-set for] on at
(8) oO (Bench/Jury trial] [Hearing] held/continued to at
(9) o This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
COFRCP4(m) Local Rule 41.1 CHFRCP41(a\(1) CFRCP41(a)(2).
(10) Ml [Other docket entry] Defendant’s motion for a judgment of acquittal or, in the alternative, for anew
trial is denied. Enter Memorandum Opinion and Order.
dl) [For further detail see order attached to the original minute order.]
No notices required, advised in open court.
2
No notices required, suber otvoties
wv | Notices mailed by judge’s staff.
Notified counsel by telephone. M i a
Docketing to mail notices. -
Mail AO 450 form. ; soa ce yy
Copy to judge/magistrate judge. _on mee O
courtroom tute ltd nonin
MPI deputy’s “ wen
initials 7
Date/time received in
central Clerk’s Office mailing deputy iia

V



Mr. McCarter’s eleventh argument is that the court improperly
answered the jury’s note regarding interstate commerce. Courts may
give supplemental instructions to the jury. Mr. McCarter does not
argue that the answer was an incorrect statement of law, nor does
he argue that his counsel was not permitted to be heard before the
court answered. This argument fails.

Mr. McCarter’s twelfth argument is that the government
improperly referred to the defense’s failure to call a fingerprint
witness, violating his Fifth Amendment rights. However, the
prosecution may properly refer to Mr. McCarter’s failure to call
witnesses, other than himself. United States v. Sblendorio, 830
F.2d 1382, 1391 (7 Cir. 1987). The government may also imply that
the defense’s failure to call witnesses (other than the defendant)
to offer evidence in opposition to that offered by government
witnesses suggests that the government witnesses are reliable. Id.
at 1392.

Mr. McCarter’s thirteenth and fourteenth arguments are that
the government improperiy commented on defense counsel’s integrity
and argued facts not in evidence in its rebuttal argument. The
government argued that if the evidence was two eyewitnesses and no
fingerprint, defense counsel would be arguing that the jury must
acquit because there was no fingerprint. This argument attacks
defense counsel’s arguments, not defense counsel personally. See

United States v. Xiong, 262 F.3d 672, 675 (7% Cir. 2001). The


that Mr. McCarter attempted to commit the underlying crimes. The
indictment need not break down “attempt” into a definition
including taking a “substantial step.” The indictment stated the
elements of the crime as laid out in the statute and adequately
informed Mr. McCarter of the acts he was charged with.

Mr. McCarter’s fifth argument is that the court erred by
denying, without a hearing, his motion to suppress his statement.
Before he is entitled to a suppression hearing, Mr. McCarter must
present "definite, specific, detailed, and nonconjectural" facts
that are both material and definite. United States v. Rodriguez,
69 F.3d 136, 141 (7 Cir. 1995). Mr. McCarter presented no such
facts in this case. He alleged that an FBI agent threatened to
beat him before he gave his statement, and that he asked for but
was not granted an attorney. Mr. McCarter presented nothing beyond
his bare allegations of these matters, failing to supply a
supporting affidavit. See United States v. Rollins, 862 F.2d 1282,
1290-91 (7 Cir. 1989).

Mr. McCarter next argues that the government was improperly
permitted to introduce an incomplete version of his statement to
FBI Agent Sean Burke. He argues that he should have been permitted
to introduce the exculpatory portions of that statement. However,
Mr. McCarter could only introduce those portions of his statement
if they (1) were relevant to issues in the case and (2) qualified

or explained the portions introduced by the government. United


prejudiced by the delay. United States v. McMutuary, 217 F.3d 477,
481-82 (7 Cir. 2000). To meet this exacting burden, Mr. McCarter
must present specific and concrete allegations, supported by
evidence, of the prejudicial effect. Id. at 482. Mr. McCarter
alleges only that records from his employer at the time of the
alleged crime are no longer available, that a material witness has
since died, and that the photo line-ups and AFIS results from 1998
are not available. Mr. McCarter does not state how either his
employment records, the testimony of this witness, or the photo
line-ups and AFIS results would support his defense. He cannot
show actual prejudice solely by listing sources of potential
evidence that are no longer available, without clearly
demonstrating the harm that will result to his defense efforts.
United States v. Canoy, 38 F.3d 893, 902 (7 Cir. 1994) (collecting
cases).

Mr. McCarter’s fourth argument is that the court erred by
denying his motion to dismiss the indictment for failure to allege
an essential element of the offense. Specifically, he argues that
the indictment did not allege a “substantial step.” To be
sufficient, an indictment must (1) contain the elements of the
offense charged and apprise the defendant of the charges he faces
and (2) be sufficiently specific so as to protect the defendant
from further prosecution for the same acts. Russell v. United

States, 369 U.S. 749, 763-64 (1962). The indictment does charge


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

UNITED STATES OF AMERICA,
Plaintiff,
v.

No. 03 CR 835 Px
8 tip Me

TERRANCE MCCARTER,

Coy

Defendant.

MEMORANDUM OPINION AND ORDER

Defendant Terrance McCarter was indicted on August 27, 2003,
on two counts related to an attempted robbery on September 1, 1998.
Mr. McCarter was arrested on September 8, 2003. After a jury
trial, Mr. McCarter was convicted on both counts on December 18,
2003. Mr. McCarter now moves for a judgment of acquittal or, in
the alternative, for a new trial. I deny that motion.

Mr. McCarter presents sixteen arguments in support of his
motion. The first two allege that the government did not meet its
burden of proving beyond a reasonable doubt that Mr. McCarter
committed the crimes he was charged with. Mr. McCarter makes no
attempt to explain how the government’s proof was insufficient and
the government’s proof was, in fact, substantial.

Mr. McCarter next argues that the court erred in denying his
motion to dismiss his indictment based on pre-accusatory delay. In
order to show that the delay in indictment was unconstitutional,

Mr. McCarter must first show that he was actually and substantially