In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 06-3607

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JAVIER REYES,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 04 CR 970—Harry D. Leinenweber, Judge.

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ARGUED JUNE 4, 2008—DECIDED SEPTEMBER 5, 2008

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Before BAUER, WOOD and WILLIAMS, Circuit Judges.

BAUER, Circuit Judge. A jury convicted Javier Reyes of

conspiracy to commit bank robbery, bank robbery, and

possessing and brandishing a handgun in furtherance

of violence. The district court sentenced Reyes to 300

months’ imprisonment. On appeal, Reyes argues that the

district court erred in allowing evidence of his prior bad

acts, limiting the scope of cross-examination of a codefendant witness, and denying his motion for new trial.

For the following reasons, we affirm.
2 No. 06-3607

I. BACKGROUND

In the early morning of August 23, 2004, Antonio

Vasquez, Ramon Berrios, Walter DeJesus, and Jose Torres

robbed the WECO Credit Union in West Chicago, Illinois.

Around 7:00 a.m., DeJesus entered the Credit Union

while the others kept watch outside in two separate cars.

DeJesus, brandishing a gun, led Ron Schuermann, the

only employee on duty at that time, to the rear of the

building. Vasquez then entered the Credit Union, emptied

money from an open safe, opened a second safe with

keys found in the first safe, and demanded that

Schuermann divulge the combination to a third safe.

Schuermann obliged. After packing up the money from

the third safe, the two men returned to the cars and drove

off.

During the robbery, Reyes was many miles away,

enjoying a vacation in the Wisconsin Dells. But he had

his own connection to the Credit Union. Earlier in the

year, Reyes had worked there as a loan officer, but had

been fired after three months on the job. While in the

process of getting fired, Reyes overheard that the Credit

Union’s security cameras did not work.

According to Vasquez, DeJesus, and Torres—all of whom

would later testify for the government against Reyes

pursuant to a cooperation agreement—in mid-August,

2004, Reyes had a series of conversations with each of

them in which they discussed robbing the Credit Union.

Eventually, Reyes provided DeJesus and Vasquez with

information that: (1) the security cameras at the Credit

Union did not work; (2) Schuermann, the President of the
No. 06-3607 3

Credit Union, would be working alone between 7:00 and

8:00 a.m.; (3) the Credit Union had three safes, the first

of which would have the keys to the second, and the

third of which would require the combination kept by

Schuermann. In addition, Reyes drew a map of the

floorplan of the Credit Union, showing the locations of the

safes, the panic switches for the alarms, and the entrances

and exits to the building. Reyes, according to his coconspirators, gave further instructions on what to do

with the proceeds of the robbery and told of his intention

to create an alibi by heading to Wisconsin. After the

robbery, Reyes made several demands regarding his

share of the profits.

On January 11, 2005, a grand jury indictment charged

Reyes with conspiracy to commit bank robbery in violation of 18 U.S.C. § 371 (Count I); bank robbery in violation

of 18 U.S.C. § 2113(a) (Count II); and possessing and

brandishing a handgun in furtherance of violence in

violation of 18 U.S.C. § 924(c)(1)(A) (Count III). Reyes’s

defense relied on attacking the testimony of the co-defendants as inconsistent and biased. He also argued that, if

he had disclosed information to his co-defendants, he did

so innocently and without any intent to commit a crime.

On October 19, 2005, the jury found Reyes guilty of all

charges. Reyes filed a motion for a new trial on

November 9, 2005 and another motion for a new trial

claiming newly discovered evidence on April 26, 2006.

On August 31, 2006, the district court denied both

motions. That same day, the court sentenced Reyes to

60 months’ imprisonment on Count I and 216 months’
4 No. 06-3607

imprisonment on Count II, to be served concurrently. The

court also sentenced Reyes to 84 months’ imprisonment

for Count III, to be served consecutively to the sentences

for Counts I and II. The court also imposed a three-year

term of supervised release, a special assessment of $300,

and restitution in the amount of $107,803.36. This timely

appeal followed. 

II. DISCUSSION

On appeal, Reyes argues that the district court:

(1) abused its discretion in granting the government’s

motion to allow evidence of Reyes’s alleged prior criminal behavior; (2) denied Reyes a fair trial by narrowing

the scope of his cross-examination of Torres; and (3)

abused its discretion in denying his motion for a new

trial based on newly discovered evidence. We will

address each issue in turn.

A. Introduction of Rule 404(b) Evidence

Prior to trial, the government filed a motion asking the

district court to allow the introduction of evidence of prior

bad acts of Reyes under Federal Rule of Evidence 404(b).

The evidence involved Reyes’s participation in a series

of previous robberies and a bank fraud scheme with two

of his co-conspirators.

At Reyes’s trial, DeJesus testified that he had participated in “[a]bout two” other robberies with Reyes. He

testified that the two had participated in the robbery of a
No. 06-3607 5

bowling alley “[a]round 2003” and the robbery of a house

in “[e]arly 2003 or late 2002.” DeJesus gave no other

details about either robbery.

Torres testified that he and Reyes “had done another

robbery before” but were never caught. According to

Torres, the robbery occurred “in 2003 in Hinsdale—or

Hinkley.” Torres further testified that Reyes had attempted to involve him in a scheme whereby Torres would

pose as a Credit Union customer and withdraw money

from that customer’s account. However, Torres chose not

to participate in the crime, offering an oddly generous

reason for his decision: “It wasn’t a fair split. He was

talking about like $5,000. I would get $4,500 and he would

get $500.”

The government argued that the evidence was necessary

to show “the nature and strength of the relationship

between [the] co-conspirators” and “to show [Mr. Reyes’s]

intent in providing information to them.” The court stated:

Well, it is propensity evidence, but it also would rebut

the fact that the defendant innocently disclosed certain

information which made the bank robbery feasible

or possible. If that’s your defense, then I’m going to

grant their motion and allow them to introduce that. If

that’s not your defense, then I would be inclined to

believe that the prejudice certainly exceeds—that the

propensity, it’s certainly more proof of propensity. But

I think that they’re entitled to know that they had

previous relationships, you know, that make it more

likely, makes it certainly more likely true that he

didn’t believe that he was innocently disclosing information. So it all depends on what your defense is. 
6 No. 06-3607

The court ultimately ruled that it would allow the prior

acts because it was relevant as to whether Reyes unwittingly provided the information to the co-defendants.

We review a district court’s decision to allow Rule 404(b)

evidence for an abuse of discretion. United States v. Moore,

531 F.3d 496, 499 (7th Cir. 2008). Four conditions must be

met to allow the introduction of evidence under 404(b):

(1) the evidence is directed toward establishing a

matter in issue other than the defendant’s propensity to commit the crime charged; 

(2) the evidence shows that the other act is similar

enough and close enough in time to be relevant to

the matter in issue;

(3) the evidence is sufficient to support a jury finding

that the defendant committed the similar act; and

(4) the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice.

Id. (citing United States v. Ross, 510 F.3d 702, 713 (7th Cir.

2007)).

Reyes contends that the government failed to meet all

four of these requirements, but we only need to focus on

the third; the Rule 404(b) evidence introduced falls short

of meeting it. We have held that the “preponderance”

standard is appropriate for determining the admissibility

of prior acts evidence. United States v. Burke, 425 F.3d 400,

410 (7th Cir. 2005) (citing Huddleston v. United States, 485

U.S. 681, 690, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988)). Even
No. 06-3607 7

by this standard, the evidence of the prior robberies lacks

the requisite factual support; the support that Torres and

DeJesus do provide is inconsistent and contradictory.

Torres could not identify in which of two Chicago

suburbs his robbery took place and could only put the

time of the robbery within a year. DeJesus could not even

identify the year when either of his two robberies took

place; as for the location, the only affirmative details he

gave were that one occurred in a house and another in a

bowling alley. There was no corroborating evidence to

support these allegations of the witnesses.

The government argues that even if the evidence of

these acts was slight, the robberies were introduced for a

limited purpose, and the district court issued a limiting

instruction. While this may be true, it does not relieve the

government of its obligation to meet the requirement that

the evidence be “sufficient to support a jury finding.”

However, this error was harmless beyond a reasonable

doubt. “Error in admitting Rule 404(b) evidence may be

deemed harmless if we are convinced that the error did not

influence the jury, or had but very slight effect, and can

say with fair assurance . . . that the judgment was not

substantially swayed by the error.” United States v. Dennis,

497 F.3d 765, 769-70 (7th Cir. 2007) (internal quotations

and citation omitted). The government presented enough

evidence at trial to satisfy any concern that the error

swayed the jury. The testimony of the co-conspirators

showed that Reyes played a key role in organizing and

plotting the Credit Union heist. Reyes gave specific and

extensive details about the inner workings of the Credit
8 No. 06-3607

Union, including the strengths and weaknesses of the

security system. He pinpointed the location of the safes

and how to access them, and recommended the ideal time

to commit the robbery. Moreover, the government did not

discuss the prior acts in summation or rebuttal, and the

district court gave a limiting instruction on the use of the

evidence. In light of the limited use of this evidence and

substantial evidence of guilt presented at trial, we are

satisfied that the error did not improperly influence

the jury.

B. Limiting Cross-Examination

Reyes next argues that he was denied a fair trial by the

cutting off of his cross-examination of co-defendant Torres.

Under the Confrontation Clause of the Sixth Amendment,

a defendant must be given an opportunity for effective

cross-examination. Pennsylvania v. Ritchie, 480 U.S. 39, 51,

107 S.Ct. 989, 94 L.Ed.2d 40 (1987); United States v. Smith,

454 F.3d 707, 714 (7th Cir. 2006). We review a district

court’s decision to limit the extent of cross-examination

for abuse of discretion. United States v. Khan, 508 F.3d 413,

417 (7th Cir. 2007). However, where the limits affect a

criminal defendant’s right to confront a witness who

testifies against him, we review the limitation de novo. Id.

at 417-18. “[W]hen deciding whether limits on

cross-examination are permissible, we must first distinguish between the core values of the Confrontation Clause

and more peripheral concerns which remain within the

trial court’s ambit.” Smith, 454 F.3d at 714. If the “core

values” of the Confrontation Clause remain intact, we
No. 06-3607 9

merely ensure that the district court’s exercise of its

wide discretion in limiting cross-examination was not

abusive. Khan, 508 F.3d at 418.

During the trial, the government introduced evidence

that Reyes had several pre-robbery conversations with

his co-defendants regarding the inner workings of the

Credit Union. The foundation of these conversations came

from the testimony of DeJesus, Vasquez, Torres, and

Berrios. During the direct examination of Torres, the

government elicited testimony that Torres attended three

pre-robbery meetings: one at Torres’s house with Berrios,

Vasquez, and Reyes; one with Vasquez, DeJesus, and

Reyes; and a final meeting with Reyes alone. On crossexamination, counsel for Reyes attempted to ask about a

meeting on August 22, 2004 between Torres and Dayana

Rodriguez, the individual who supplied one of the getaway vehicles:

[Counsel for Reyes]: Mr. Torres, when you were

planning—when the robbery was getting planned, you

claim that—well, you said that one thing you had to

do—I don’t know if you talked about this on direct, but

one thing you did have to do was find a getaway

vehicle. That’s something that had to happen, right?

[Torres]: Yes.

Q: And to do that, you had a meeting with Dayana

Rodriguez, correct?

A: Correct.

Q: And that meeting took place on Sunday,

August 22nd, correct?
10 No. 06-3607

At this point, the government objected to the testimony as

beyond the scope of the direct examination. The district

court sustained the objection. The cross-examination

continued: 

Q: Mr. Torres, during the course of this, you said

that Mr. Reyes was involved in all the aspects of

planning the robbery, correct?

A: Yes.

Q: But it’s your understanding, Mr. Torres, that Mr.

Reyes, he never was involved in getting the getaway car. That’s the one thing he didn’t have

anything to do with, right?

A: That’s the only thing.

Q: Right. So as far as you know, he never discussed

the car with Dayana Rodriguez, correct?

. . .

A: As far as I know, no.

Q: Then they never had a discussion at your house

on Sunday, the 22nd, did they?

. . .

A: No.

Q: Mr. Torres, on the night of the 22nd—well, the

22nd, that was after Mr. Reyes was already gone

on vacation. That’s true, isn’t it?

A: Yes.

Q: On the night of the 22nd, you sat down with

Berrios and Vasquez and DeJesus, correct?
No. 06-3607 11

A: Yes.

Q: And you guys had a meeting where you discussed

your final plans, right?

[Counsel for the government]: Objection, Your Honor.

This is all beyond the scope.

[Counsel for Reyes]: Your Honor, they talked about

all the planning that Mr. Reyes did. It’s only fair that

we discuss whatever planning Mr. Reyes didn’t do so

that the jury can make that contrast.

The district court then sustained the government’s objection.

We find that the district court did not limit the crossexamination so as to affect the “core values” of the Confrontation Clause. In excluding the examination of the

meeting between Torres, Berrios, Vasquez, and DeJesus,

Reyes was not entirely precluded from delving into

the discussion. Moreover, Reyes could have called Torres

during his case in chief and elicited testimony on

the specifics of that meeting. He chose not to do so. If that

would have created difficulties, Reyes should have

raised such concerns at that time so that the district court

could have weighed the difficulties against allowing the

outside-the-scope testimony. To the extent that Reyes

argues that by sustaining the government’s first objection

that the district court impeded the ability to confront

his co-defendant, his argument falls short. Reyes’s counsel

was able to quickly recover and get from Torres exactly

what he sought: that, in Torres’s opinion, Reyes had

nothing whatsoever to do with the planning of acquiring

a getaway car. No reversible error occurred.
12 No. 06-3607

C. New Trial

Reyes finally agues that the district court erred when

it denied Reyes’s motion for a new trial based on newly

discovered evidence. We review an order denying a new

trial motion based on newly discovered evidence for an

abuse of discretion. See United States v. McGee, 408 F.3d

966, 979 (7th Cir. 2005).

Under Federal Rules of Criminal Procedure 33, “the court

may vacate any judgment and grant a new trial if the

interest of justice so requires.” To obtain a new trial based

on newly discovered evidence, Reyes must show that the

evidence (1) was discovered after trial; (2) could not have

been discovered sooner with due diligence; (3) was material and not simply impeaching or cumulative; and (4) if

presented at a new trial would “probably result in acquittal.” United States v. Palivos, 486 F.3d 250, 255 (7th Cir.

2007).

In his motion for a new trial, Reyes presented affidavits

of two individuals—Daniel Ramirez and Lucy Ocasio.

Ramirez claimed in his affidavit that while incarcerated

at the Metropolitan Correction Center he came into

contact with DeJesus. DeJesus, according to Ramirez,

discussed the Credit Union robbery and admitted that it

was planned by someone named “Joey”—Torres’s nickname. DeJesus further told Ramirez that Reyes had

nothing to do with the robbery, and that all of the men

agreed that they would blame Reyes if they were caught.

According to Ocasio’s affidavit, she dated Berrios at the

time of the robbery and witnessed several of the meetings

where the robbery was discussed and during the course

of these meetings, she never saw Reyes at any of them;
No. 06-3607 13

and she claimed that Torres had instructed the others to

blame Reyes if any of them were caught.

As the government points out, Ocasio’s statements in the

affidavit directly contradict her statements made to the

FBI in an interview conducted eighteen months before

she signed her proffered affidavit. In that interview, she

stated that on one occasion, she was present at a meeting

among Reyes, Torres, and Berrios. Following the meeting,

Berrios told Ocasio that they were discussing robbing the

Credit Union. In addition, the government gave Reyes a

copy of her interview with the FBI, and Reyes had an

opportunity to interview Ocasio prior to trial.

In denying Reyes’s motion, the district court found that

both affidavits failed the materiality requirement; its

primary use would be for impeachment.

We will focus primarily on the statements in the Ramirez

affidavit. Ocasio’s affidavit, apart from not offering much

material support to Reyes’s defense, is inconsistent and

contradicts her earlier statements. Moreover, Reyes could

have discovered this information prior to trial with some

diligence.

Addressing the evidence in the Ramirez affidavit, we

are not as convinced as the district court that the evidence

fails on the materiality requirement. It is true that, typically, newly discovered impeachment evidence does not

warrant relief under Rule 33. See United States v. Woods, 301

F.3d 556, 563 (7th Cir. 2002); see also United States v. Taglia,

922 F.2d 413, 415 (7th Cir. 1991) (finding that newly

discovered impeachment evidence can be enough where

the conviction depends entirely on the uncorroborated
14 No. 06-3607

testimony of a single unreliable witness). This evidence

might have had benefits to Reyes beyond impeachment.

By supporting his argument that his co-defendants sought

to pin the robbery on an unwitting Reyes, the evidence

would bolster, to a degree, his defense. Reyes argued

that he did not realize that the information he disclosed to

his co-defendants would be used in the commission of a

crime; therefore, evidence suggesting that they used

this disclosure prompted the co-defendants to both

commit the crime and pin the leadership role on Reyes

would support his argument.

We need not go too far down this road, however, as the

proffered evidence fails to satisfy the fourth element. It

his hard to conceive that the evidence in Ramirez’s affidavit would have affected the verdict. Comparing the

evidence indicating the extent of Reyes’s knowledge of

the robbery of the Credit Union—including the specific

insider details used during the crime—it is difficult to

believe that the testimony of a former cellmate of one of

the co-defendants would result in acquittal.

III. CONCLUSION

Accordingly, Reyes’s conviction is AFFIRMED.

9-5-08