In the

United States Court of Appeals

For the Seventh Circuit

No. 10-3198

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

NAPOLEON FOSTER,

Defendant-Appellant.

Appeal from the United States District Court 

for the Northern District of Illinois, Eastern Division.

No. 08 CR 880—Robert W. Gettleman, Judge.

ARGUED APRIL 7, 2011—DECIDED JULY 21, 2011

Before CUDAHY, MANION, and HAMILTON, Circuit Judges.

HAMILTON, Circuit Judge. Appellant Napoleon Foster

was found guilty of orchestrating an armed robbery of a

credit union and related firearms charges. He was sentenced to 284 months in prison. On appeal, Foster raises

numerous challenges to his convictions and sentence.

First, he argues that his jury was not selected in the

manner required by Federal Rule of Criminal Procedure 24. He then argues that inadmissible propensity
2 No. 10-3198

evidence and several hearsay statements were admitted

against him. Foster also argues that the evidence was not

sufficient to show that the credit union was federally

insured at the time of the robbery, and that he could not

be convicted as a felon in possession of a firearm

because Illinois had allegedly restored his civil rights

after his last term of imprisonment. Finally, Foster contends that he should not have been sentenced as an

armed career criminal. Finding no reversible error, we

affirm Foster’s convictions and sentence.

I. The Robbery and Factual Background

On January 19, 2006, two armed and masked people

robbed the Acme Continental Credit Union in Riverdale,

Illinois. They made off with about $250,000 in cash, aided

by an accomplice who drove their getaway car. Law enforcement eventually identified Asia Hill and Charles

Anderson as the masked robbers and appellant Napoleon

Foster as their getaway driver. Foster was arrested and

charged with armed robbery of a financial institution

in violation of 18 U.S.C. § 2113(a) & (d), possession of a

firearm in furtherance of a crime of violence in violation

of 18 U.S.C. § 924(c)(1)(A), and possession of a firearm

after being convicted of a felony in violation of 18 U.S.C.

§ 922(g)(1).

Asia Hill was the prosecution’s star witness at trial,

having agreed to testify against Foster in exchange for

leniency. According to Hill, Foster had suggested that

they rob the credit union because he had done business

there for some time and was familiar with the building
No. 10-3198 3

layout and the employees. Foster knew how many employees worked in the credit union and who carried the

vault key. He knew that the credit union was unguarded

and that one employee owned a truck ideally suited for

a getaway. Hill also testified that Foster had agreed

to provide two firearms for use in the robbery.

Foster did not want to go inside the credit union himself. He feared that he might be recognized. He

decided that he and Hill should recruit two additional

accomplices to carry out the robbery. Hill recruited

her friend Charles Anderson, a man she described as

“a small-time drug dealer” in need of money, who in

turn recruited his friend Randy Williams.

Initially, the plan was for Anderson and Williams to

go inside the credit union while Hill and Foster waited

behind in a getaway car that Williams agreed to provide. On the day of the robbery, however, Williams

never showed up. Hill agreed to go into the credit union

in his place. Foster then drove Hill and Anderson to

the credit union, dropped them off, and drove a short

distance away to wait for them. Anderson and Hill

wore masks. Hill carried a .38 revolver, and Anderson

had a sawed-off shotgun, both provided by Foster.

Once inside the credit union, Hill had a teller empty

the cash drawers while Anderson emptied the vault.

After they had taken all the money they could carry,

they fled in a car stolen from one of the credit union’s

tellers.

Hill and Anderson met up with Foster a short distance

from the credit union and abandoned the stolen car.

Foster then drove them back to Hill’s apartment in
4 No. 10-3198

Indiana to count the money from the heist. Out of approximately $250,000 stolen from the credit union, Hill

testified, Foster took the largest share of $100,000. Hill

and Anderson split what remained.

Anderson also testified pursuant to a plea agreement.

Anderson corroborated much of Hill’s previous testimony, admitting that he and Hill were the masked

robbers and claiming that Foster had provided the guns,

the inside information about the credit union, and the

getaway car. Because Foster had planned the robbery,

Anderson testified, he took $100,000 of the stolen money

for himself while Anderson and Hill took smaller shares.

Foster did not testify in his defense. The jury convicted

him on all three counts. At sentencing, the district court

concluded that Foster’s past criminal record qualified

him as an armed career criminal and sentenced him to

284 months in prison. This appeal followed. 

II. Jury Selection — Federal Rule of Criminal Procedure 24

Foster’s primary argument on appeal is that the jury

selection process violated Rule 24 of the Federal Rules

of Criminal Procedure. After the entire jury panel was

questioned, the parties exercised their challenges for

cause against the entire panel. The parties then exercised their peremptory challenges, including a number of

extra challenges granted by the district court, against the

remaining members of the panel as a whole. Twelve

remaining members of the panel were then selected at

random and seated on the jury, and two more were

selected at random and seated as alternates.
No. 10-3198 5

On appeal, Foster raises two distinct issues. First,

Foster and the government agree that the district court’s

process for selecting the alternate jurors failed to

comply with Rule 24(c)(4) of the Federal Rules of

Criminal Procedure. That rule provides additional peremptory challenges to be exercised specifically against

prospective alternate jurors, the number of which is

based on the number of alternates the court intends to

seat. Fed. R. Crim. P. 24(c)(4). “These additional challenges may be used only to remove alternate jurors.” Id.

(emphasis added).

Although a district court has substantial discretion

regarding how it conducts the jury selection process,

compliance with the explicit requirements of Rule 24

is not a matter entrusted to the court’s discretion. United

States v. Mendoza, 510 F.3d 749, 753 (7th Cir. 2007), citing

United States v. Delgado, 350 F.3d 520, 524 (6th Cir.

2003). Here, the district court granted the parties extra

peremptory challenges for use against the entire panel,

but did not provide the required additional challenges

that could be used only to remove alternate jurors. See

United States v. Patterson, 215 F.3d 776, 780 (7th Cir.

2000) (finding same district judge’s method of selecting

alternate jurors violated Rule 24(c), but finding error

harmless), vacated in part on other grounds, 531 U.S. 1033

(2000).

The second jury selection issue challenges the

district court’s decision to have the parties exercise

their peremptory challenges without knowing the

seating priority of the panel members. Foster complains
6 No. 10-3198

that the random selection of the panel members who

had survived the for-cause and peremptory challenges

diluted his ability to maximize the value of his

peremptory challenges. If he had known the order in

which the panel members would be seated on the jury,

he argues, he could have focused his peremptory challenges on those jurors with the highest seating priorities

and whose impartiality he doubted.

The text of Rule 24 provides for questioning of prospective jurors and for the exercise of peremptory challenges. With the exception of the separate peremptory

challenges for alternate jurors, however, Rule 24 leaves

a good deal of discretion to a district court as to the

details. At the most basic level, Rule 24 does not specify

a choice between the “struck jury” or “jury box” systems

for selecting juries and exercising peremptory challenges,

or for choosing among the many variations on them. For

a useful summary of the two major systems and the

important variables in the details, see Roger Allan Ford,

Modeling the Effects of Peremptory Challenges on Jury

Selection and Jury Verdicts, 17 Geo. Mason L. Rev. 377, 383-

87 (2010) (reviewing debate on different procedures,

including available empirical evidence); Kathleen M.

McKenna, Current Developments in Federal Civil Practice,

821 PLI/Lit. 581, 587-89 (2010). Each method has its supporters and detractors. Over the past generation, however, the ability to challenge an opponent’s exercise of

peremptory challenges under Batson v. Kentucky, 476

U.S. 79 (1986), and its progeny has tilted the balance

in favor of the struck jury system, which allows the court

to evaluate all peremptory challenges before any struck

jurors have been sent home.
No. 10-3198 7

Trial lawyers’ and judges’ opinions about the important

variables in jury selection procedures are often firmly

held. From the perspective of parties and their lawyers,

a critical consideration is how much information they

have about the effects of any specific peremptory challenge. How likely is it that a particular juror will be

selected if not struck, or is that likelihood simply unknown? If that particular juror is struck, what is known

about the likely replacement — is that possible replacement even more biased against the defendant than

the person struck? See Ford, supra, at 387 (noting that

whether jury pool is placed in a specific order before

attorneys exercise their challenges is both “frequently

discretionary” and important to jury selection outcomes). However important these details may be to the

parties, the important thing for our purposes is that

Rule 24 leaves these details of jury selection to the discretion of the district judge. We specifically rejected in

Patterson the argument that the accused in a criminal

case is entitled to make maximum strategic use of the

peremptory challenges. 215 F.3d at 780.

We dwell no further on the details of the procedures

used to select the jurors and their alternates because

Foster explicitly waived the protections of those procedures. As the Supreme Court has explained, the provisions of the Federal Rules of Criminal Procedure

are “presumptively waivable.” United States v. Mezzanatto,

513 U.S. 196, 201 (1995). Here, Foster waived any challenge

to the jury selection process by agreeing explicitly in

advance to the procedure used by the district judge. See

United States v. Hill, 552 F.3d 541, 544-45 (7th Cir. 2008)
8 No. 10-3198

Contrary to Foster’s insistence on appeal, nothing in the 1

record indicates that his defense counsel was confused or

misinformed.

(finding defendant waived objection to same Rule 24(c)

violation in selection of alternate jurors). In an on-therecord pretrial conference and at trial, the district judge

explained the manner in which he planned to conduct

voir dire and asked the parties if they agreed to that

procedure. Both defense counsel and the prosecution

agreed without reservation. Foster did not raise his 1

present argument until after he was found guilty. Having

waived any error that may have occurred here, Foster

cannot now complain of the manner in which his jury

was selected.

We also decline Foster’s invitation to exercise our

supervisory power and reverse his conviction to coax

the district court into complying with Rule 24 and our

precedent interpreting that rule. By proceeding with voir

dire only after carefully ensuring that both parties had

waived the requirements of Rule 24, the district court

did not reveal disregard of our prior rulings, but rather

acknowledged that those rulings forbade it from proceeding absent the parties’ consent. We are confident

that both the district courts and the prosecutors in this

circuit are well aware that the validity of convictions

obtained after violations of Rule 24 may well depend

upon the validity of such waivers and will take whatever steps are necessary to ensure that any such waivers

are valid.
No. 10-3198 9

III. Evidentiary Issues

Foster next argues that several evidentiary rulings

require reversal. He argues first, that the government’s

evidence regarding his involvement in a fraudulent checkcashing scheme was inadmissible under Federal

Rule of Evidence 404(b); second, that a conversation

recorded between Anderson and Williams after the

robbery was inadmissible hearsay; third, that he was

denied an opportunity to cross-examine a witness

who identified him in a photographic array; and fourth,

that one of his defense exhibits was not provided to the

jury until after closing arguments had begun. We

review these evidentiary issues for a possible abuse of

discretion, unless Foster failed to object at trial, in which

case our review is only for plain error. United States

v. Tanner, 628 F.3d 890, 901 (7th Cir. 2010). 

A. Rule 404(b) Evidence Regarding Check Fraud Scheme

Before trial, the government moved in limine for permission to introduce evidence that, prior to the Acme

robbery, Foster had participated with Hill in a

fraudulent check-cashing scheme. The government

argued that the check-cashing scheme was inextricably

intertwined with the Acme robbery because the

evidence concerning the scheme showed “why defendant

Foster chose to commit [the] robbery in the first place”

and “how the criminal relationship between Asia Hill

and Napoleon Foster developed, why Foster was

involved in the robbery, and how Charles Anderson

evolved from Asia Hill’s companion to Foster’s criminal
10 No. 10-3198

associate.” In the alternative, the government asserted

that the check-fraud evidence was admissible under

Rule 404(b) because it would “show how the criminal

relationship between defendant and Hill developed, and

place[ ] Hill’s recruitment of Anderson in context by

explaining Hill and Foster’s motive for participating in

the Acme Credit Union robbery.” Over Foster’s objection, the district court granted the government’s motion

on the grounds that the Acme robbery was “intricately

related to the alleged failed check cashing scheme” and

that evidence of the check-cashing scheme “explains the

relationship among the alleged co-conspirators and the

origin of the charged scheme to rob a [credit union].”

At trial, the government presented extensive testimony

regarding the check-cashing scheme. On direct examination, Hill explained that she had first met Foster when

he recruited her to assist him in a fraudulent checkcashing scheme. According to Hill, Foster used passport

photos to create fake employee identification cards,

which Hill would then use to cash forged corporate

payroll checks. Hill gave any money she received to

Foster, who paid her approximately $600 for every check

she cashed. Hill claimed, however, that by late December 2005 or early January 2006, she told Foster that she

wanted out of the check-cashing scheme. Cashing the

checks was too time-consuming, she said, and she

was nervous about the risk she took every time she

cashed a forged check, especially since those checks

were in her name and she received so little money

from each check. According to Hill, Foster responded

by asking her if she was interested in helping him rob
No. 10-3198 11

Acme, a credit union at which he had “done business

for some years.”

The check-cashing evidence was not limited to Hill’s

testimony. Anderson also testified that, when Hill recruited him to help rob Acme, she claimed to know

Foster from her prior involvement in the check-cashing

scheme. Anderson claimed that Hill had told him

that Foster “would get the checks and make the checks

out,” while Hill “was responsible for cashing the checks.”

Hill had decided not to continue cashing those checks,

Anderson explained, which was “why we were talking

at that point about the robbery.”

The chief financial officer of a victim of the scheme

also testified. He told the jury that, in September 2005, it

came to his attention that fraudulent checks were being

cashed against his company’s bank account. After an

internal audit, the CFO said, he learned that “about five

checks [had] cleared in amounts different than we had

recorded.” An investigation by the company’s bank

revealed that the checks had been cashed against an

account used to pay vendors, not a payroll account. The

CFO also identified a number of the fraudulent checks

that Hill had cashed against that account, none of which

had been authorized by the company. Those checks, the

CFO explained, were in fact duplicates of legitimate

checks issued in different amounts to different individuals.

In granting the government’s pretrial request to

place this evidence before the jury, the district court

relied on a theory of “inextricable intertwinement” that

complied with the law of this circuit at the time. After
12 No. 10-3198

the trial in this case, however, we barred resort to that

theory on the ground that it had become “overused,

vague, and quite unhelpful.” United States v. Gorman, 613

F.3d 711, 719 (7th Cir. 2010). Instead, we instructed

district courts to consider whether such evidence would

be admissible either under Rule 404(b) or as direct evidence of the charged offense. Id. (affirming conviction

because “inextricably intertwined” evidence was properly

admissible as relevant evidence).

What to do now with a trial conducted under the preGorman law? From the district judge’s explanation under

our now-abandoned “inextricably intertwined” concept,

we think it is clear that the judge would have admitted

this evidence under Rule 404(b) if he had anticipated our

about-face. See United States v. Conner, 583 F.3d 1011,

1019 (7th Cir. 2009) (observing before Gorman that we

will uphold rulings applying the inextricably intertwined

doctrine if the evidence at issue is admissible under

Rule 404(b)). Under Rule 404(b), evidence detailing “other

crimes, wrongs, or acts is not admissible to prove the

character of a person in order to show action in

conformity therewith,” but such evidence is admissible

for other purposes. When determining whether evidence

is admissible for another purpose, we ask whether (1) the

evidence was offered for some purpose other than to

show the defendant’s criminal propensities; (2) the other

act is similar enough and close enough in time to the

charged crime to be relevant to that stated purpose; (3) the

evidence presented was sufficient to support a finding

that the defendant committed the prior act; and (4) the

probative value of the proffered evidence is not substan-
No. 10-3198 13

To the extent Foster tries to argue that this purpose is not

2

among those listed in Rule 404(b), we note that the exceptions

listed in that rule “do[ ]not exhaust the purposes for which

evidence of other wrongs or acts may be admitted.” United

States v. Jordan, 722 F.2d 353, 356 (7th Cir. 1983).

Foster does not argue that his prior acts were not close 3

enough in time to be admissible under Rule 404(b).

tially outweighed by the danger of unfair prejudice.

United States v. Hicks, 635 F.3d 1063, 1069 (7th Cir. 2011).

As to the first element, the check-cashing scheme was

not offered as propensity evidence. The check-cashing

evidence showed the origin of Foster’s relationship with

Hill. It helped explain his trust of her in carrying out the

robbery and the evolution of their relationship from

check fraud to armed robbery. The evidence helped 2

explain why Foster would have approached Hill, of all

people, with his plan to rob Acme: the two knew one

another well not merely in a social setting but in an

ongoing criminal relationship. See United States v. Taylor,

522 F.3d 731, 734 (7th Cir. 2008) (noting that the fact that

a defendant’s criminal associates “had dealt with him

previously could explain how they were able to

identify him . . . and why he was willing to deal with

them”).

On the second element, Foster insists that check fraud

is so different from armed robbery that this evidence

could not have been admitted against him under

Rule 404(b). Foster cites cases in which we have held 3

prior bad acts inadmissible because they bore too little
14 No. 10-3198

similarity to the offense charged. E.g., United States v.

Hudson, 843 F.2d 1062, 1066 (7th Cir. 1988) (finding an

abuse of discretion where “government did not in any

way establish that the . . . robbery was similar in nature

to the charged crime”). But the fact that certain Rule 404(b)

evidence is admissible or not in one case does not

mean that the same result will be called for in a subsequent case:

[Q]uestions about “how similar is similar enough” . . .

do not have uniform answers; these answers . . . depend

on the theory that makes the evidence admissible, and

must be reached on a case-by-case basis. Thus, similarity means more than sharing some common characteristics; the common characteristics must relate to

the purpose for which the evidence is offered.

United States v. Torres, 977 F.2d 321, 326 (7th Cir. 1992)

(emphases added); United States v. Vargas, 552 F.3d 550, 555

(7th Cir. 2008) (explaining that “we analyze whether

the prior conduct is similar enough on a case-by-case

basis, a determination that ‘depend[s] on the theory

that makes the evidence admissible’ ”), quoting United

States v. Wheeler, 540 F.3d 683, 692 (7th Cir. 2008). This

is why such a high degree of similarity is required when

Rule 404(b) evidence is offered to prove modus operandi,

United States v. Smith, 103 F.3d 600, 603 (7th Cir. 1996),

while less similarity is required when such evidence is

offered for other purposes, see United States v. Wheeler,

540 F.3d 683, 692 (7th Cir. 2008).

Because the evidence of Foster’s prior check fraud

was offered to show that he had a criminal relationship
No. 10-3198 15

with Hill that eventually gave rise to the plan to rob

Acme, Rule 404(b) requires little similarity between the

check fraud and the subsequent robbery. See Vargas, 552

F.3d at 555; Torres, 977 F.2d at 326. As our cases explain,

the comparison of Foster’s prior acts to the charged

crimes “need not be unduly rigid,” but rather should

be “directed at establishing the relevancy of the 404(b)

evidence.” United States v. Lloyd, 71 F.3d 1256, 1264-65

(7th Cir. 1995) (emphasis omitted). Here, the evidence

showing that Foster suggested the robbery after Hill

decided that she no longer wanted to cash fraudulent

checks was relevant in essentially the same way as

would have been evidence showing that Foster and

Hill were old friends or close relatives: it explained why

Foster trusted Hill, of all people, to help carry out

the Acme robbery. Given the purpose for which

this evidence was offered, the similarity prong of

the Rule 404(b) analysis is of exceedingly minimal significance. See Hicks, 635 F.3d at 1069 (stating that

Rule 404(b) requires only that the charged crime and the

other act be “similar enough and close enough in time to

be relevant to the matter in issue”). The significant differences between check fraud and armed robbery do

not undermine the check fraud scheme’s relevance to the

government’s argument that the robbery represented

an escalation of Foster’s and Hill’s criminal relationship.

The third element of Rule 404(b) analysis requires that

the evidence be sufficient to prove Foster’s involvement

in the check-cashing scheme by a preponderance of the

evidence. United States v. Reyes, 542 F.3d 588, 592 (7th Cir.

2008). Given the extensive evidence and testimony pre-
16 No. 10-3198

sented at trial — Hill testified at length regarding Foster’s

role in the check-cashing scheme, and the victim’s CFO

confirmed that his company had been the victim of that

scheme — there can be little doubt that the government

met this burden.

The final element of our analysis requires that we

consider whether the prejudicial value of the evidence

substantially outweighed its probative value. Hicks, 635

F.3d at 1069. Central to this determination is whether,

in context, the evidence’s “prejudicial impact is substantial in relation to the evidence’s probative value.”

Tanner, 628 F.3d at 902. “[T]he more probative the evidence, the more the court will tolerate some risk of prejudice, while less probative evidence will be received only

if the risk of prejudice is more remote.” United States

v. Torres, 977 F.2d 321, 328 (7th Cir. 1992).

The testimony from Hill and Anderson about the checkcashing scheme was sufficiently probative regarding

Hill’s relationship with Foster to overcome any unfairly

prejudicial effect of that evidence. Although the question

is closer, we also see no error, given the government’s

theory of admissibility, in admitting testimony from

one victim of the check-cashing scheme. The government had to prove the scheme by at least a preponderance

of the evidence. The victim provided a witness who

was, unlike Hill and Anderson, not a confessed bank

robber and was not burdened with the credibility

problems usually associated with confessed felons.

Even if the victim’s testimony went into more detail

about the check-fraud scheme than we might ourselves
No. 10-3198 17

think necessary with the benefit of hindsight, we see

no abuse of discretion or reversible error. The jury

heard extensive testimony from two of Foster’s alleged accomplices, both of whom named Foster as their getaway

driver and the man who planned the Acme robbery and

took the largest share of the proceeds. Much of the checkcashing evidence — specifically, Hill’s and Anderson’s

testimony explaining how the check fraud scheme evolved

into a plan to rob Acme — was properly admitted under

Rule 404(b). Given the strength of the case against

Foster, we believe the relatively modest quantity of

evidence provided by the victim had no meaningful

effect on the jury’s verdict on the bank robbery and

firearm charges. See, e.g., United States v. Robinson, 8 F.3d

398, 411 (7th Cir. 1993) (explaining that “a non-constitutional error is harmless if . . . it did not substantially

affect the jury’s decision”); see also Tanner, 628 F.3d at

903 (finding no reversible error where portion of testimony inadmissible under Rule 403 was “cumulative”

and “not so prejudicial relative to the extremely strong

evidence of [the defendant’s] guilt”).

B. Hearsay Objections

Over Foster’s pretrial objection, the district court admitted into evidence certain out-of-court statements made

by Anderson and Williams concerning the Acme robbery.

At trial, Anderson testified that he and Williams had

gotten together some time after the Acme robbery to

drive around and to “look[ ] for locations . . . to go out

and rob.” As they drove around, Anderson told
18 No. 10-3198

Because we find no error on these issues, we decline to 4

resolve the parties’ dispute over whether plain error review is

appropriate here. See Tanner, 628 F.3d at 901 n.2.

Williams about his involvement in the Acme robbery.

Unbeknownst to Anderson at the time, Williams was

recording the entire conversation for the FBI. During

Anderson’s testimony, the district court admitted into

evidence the recording and portions of a transcript

and allowed the government to play parts of the recording for the jury. Foster argues that the recording

and transcript were inadmissible hearsay and that their

admission violated his Sixth Amendment right to confrontation because Williams did not testify at trial.4

We analyze each declarant’s statement separately for

the purposes of hearsay analysis. See United States v.

Tolliver, 454 F.3d 660, 665-66 (7th Cir. 2006). Under

Rule 801(d)(1)(B), an out-of-court statement is excluded

from the hearsay rule if (1) that statement is consistent

with the declarant’s trial testimony; (2) the party

offering that statement did so to rebut an express or

implied charge of recent fabrication or improper motive

against the declarant; (3) that statement was made before

the declarant had a motive for fabrication; and (4) the

declarant testifies at trial and is subject to cross-examination. United States v. Fulford, 980 F.2d 1110, 1114 (7th

Cir. 1992), citing United States v. Lewis, 954 F.2d 1386,

1391 (7th Cir. 1992).

Foster challenges only the second element of this test,

which was undoubtedly satisfied here. Foster clearly
No. 10-3198 19

We do not consider Foster’s additional arguments con- 5

cerning the application of Rule 801(d)(1)(B), all of which Foster

raised for the first time in his reply brief. See United States v.

Feinberg, 89 F.3d 333, 341 (7th Cir. 1996) (“The reply brief is not

the appropriate vehicle for presenting new arguments or legal

theories to the court.”). Foster has also waived any challenge

to Williams’ part of the recorded conversation by failing to

develop this argument sufficiently on appeal, both factually

and legally. E.g., United States v. Collins, 604 F.3d 481, 487 n.2

(continued...)

implied in his opening statement that Anderson would

lie about Foster’s involvement in the robbery in order

to curry favor with the government. By implying that

Anderson’s plea agreement gave him an incentive to

lie, Foster opened the door to the admission of Anderson’s

prior consistent statements on direct examination,

before Foster had an opportunity to challenge Anderson’s

credibility on cross-examination. See United States v.

Cherry, 938 F.2d 748, 756 (7th Cir. 1991) (holding witness’s

prior consistent statement admissible in part because

defense counsel implied during opening statement that

witness had fabricated her testimony); United States v.

LeBlanc, 612 F.2d 1012, 1017 (6th Cir. 1980) (holding witness’s prior consistent statement admissible where

defense counsel implied in his opening statement that

witness “should not be believed because of the favorable

consideration he received from the government in his

plea bargaining agreement”). Anderson’s prior consistent statement was not hearsay under Rule 801(d)(1)(B),

and the district court did not err.5
20 No. 10-3198

(...continued) 5

(7th Cir. 2010). In any event, our review of the record

indicates that Williams’ statements were offered not for

their truth but only to provide the context necessary to allow

the jury to make sense of Anderson’s admissible side of the

conversation. See United States v. Gajo, 290 F.3d 922, 930 (7th

Cir. 2002).

C. Photographic Identification

Foster’s next challenges the application of another

exception to the hearsay rule to out-of-court statements

identifying a particular person. The evidence at issue

here is a photographic array admitted as proof that

Foster owned the black Cadillac used in the Acme

robbery and that Foster was with Hill on the day of the

robbery. At trial, Daniel Kotlajich testified that he had

sold a black Cadillac to Foster in October 2005. He identified the bill of sale and vehicle title that Foster had

signed in that sale. Kotlajich also testified that Foster

had accompanied Hill when she purchased a black Oldsmobile from Kotlajich on the day of the Acme robbery.

Unfortunately for the prosecution, Kotlajich could not

identify Foster at trial. Kotlajich did say, however, that

when previously shown a photographic array, he was

able to identify the man who had purchased the black

Cadillac and who had accompanied Hill when she purchased the black Oldsmobile. He testified that he had

initialed the photo of the man he identified in that array.

The government later called FBI Special Agent Lori

Warren, who testified that she had spoken to Kotlajich
No. 10-3198 21

and shown him a photo array that included a photo

of Foster. According to Agent Warren, Kotlajich had

identified and initialed Foster’s photo in that array. The

government then offered the photo array into evidence.

Foster objected on the ground that he had not been able

to cross-examine Kotlajich regarding that array. The district court agreed that Foster had not been given sufficient

opportunity to cross-examine Kotlajich about the photo

array, but overruled that objection after granting Foster

the opportunity to recall and cross-examine Kotlajich

during his case-in-chief. Foster never took advantage

of that opportunity to recall Kotlajich, however, and rested

his case without calling any witnesses in his defense.

Federal Rule of Evidence 801(d)(1)(C) excludes a statement from the definition of hearsay if the declarant

“testifies at trial . . . subject to cross-examination concerning the statement and the statement is . . . (C) one

of identification of a person made after perceiving the

person. . . .” Under this rule, Kotlajich’s out-ofcourt identification of Foster was admissible nonhearsay so long as Kotlajich testified at trial and was

subject to cross-examination concerning that identification. The Third Circuit has explained: 

Debate on the 1975 amendment to [Rule 801(d)] demonstrates [that] Congress was aware that third parties

would testify to the witness’s prior statements.

See 121 Cong. Rec. 31,867 (1975) (statement of Rep.

Hungate) (“The bill . . . applies to situations where

an eyewitness has previously identified a person out

of court. It would admit into evidence testimony of
22 No. 10-3198

that identification. For example, testimony by a

police officer that at a lineup John Doe identified

the defendant as the man who robbed his store.”).

United States v. Brink, 39 F.3d 419, 426 (3d Cir. 1994). So

long as the requirements of Rule 801(d)(1)(C) are met,

government agents may testify about a prior statement

of identification made by a witness who “identified the

defendant in a lineup or photospread, but forgets, or

changes, his testimony at trial.” Id.; see, e.g., United States

v. O’Malley, 796 F.2d 891, 898-99 (7th Cir. 1986) (allowing

FBI agent to testify regarding witness’s prior identification of defendant after witness recanted at trial).

The better course, obviously, is to provide the photo

array or other evidence of the prior identification immediately, while the declarant is still on the witness

stand. But events at trial sometimes make the better

course impractical. In such circumstances, a meaningful

opportunity to cross-examine a declarant regarding

his prior identification is enough to satisfy the requirements of Rule 801, even if the defendant chooses not to

use the opportunity. See United States v. Elemy, 656 F.2d

507, 508 (9th Cir. 1981) (holding that FBI agent’s testimony regarding witness’s prior identification was admissible where nothing in the record suggested that the

declarant was unavailable for reexamination after the

agent’s testimony). The district court provided Foster

such a meaningful opportunity to cross-examine Kotlajich

when it granted Foster permission to recall Kotlajich as

a witness to pursue this matter further.
No. 10-3198 23

D. Evidence of Foreclosure on Foster’s Home

Foster complains that one of his exhibits was not presented to the jury during his case-in-chief. During a jury

recess after the government rested its case, Foster offered

into evidence an exhibit showing that his mortgaged

home had gone into foreclosure some time after his

alleged participation in the Acme robbery. The court

admitted this exhibit into evidence without objection

from the government. When the jury returned from its

recess, however, neither the court nor defense counsel

told the jury that any exhibit had been offered into evidence in its absence. Instead, the court told the jury that

the parties had rested and allowed the government to

begin its closing argument.

Almost immediately, Foster requested a sidebar conference and told the court that his exhibit had never been

published to the jury. The district court then told the jury:

When I said “both sides rested,” we had been doing

some work when you were out for your lunch break,

and during that time the defense offered some

exhibits into evidence which were accepted into

evidence and that they will address during their case.

And that was part of their case. The rule is that you

ordinarily don’t offer exhibits except during your

own case. They used that opportunity when you

were out to offer those exhibits which are in. So

you’ll hear them discuss that during their closing

arguments.

As the district court promised, Foster highlighted this

exhibit during his closing argument, arguing that if he
24 No. 10-3198

really had stolen $100,000 from Acme, he could have

saved his home from foreclosure.

On appeal, Foster argues that the failure to allow him

to present this exhibit during his case-in-chief tended

to diminish its importance and greatly prejudiced him.

We disagree. When Foster brought the omission of his

exhibit to the court’s attention, the court explained the

mistake to the jury and gave Foster’s counsel ample

opportunity to discuss the omitted exhibit in his closing

argument. Only after the jury found him guilty did

Foster complain that this issue should have been handled

differently. Absent a contemporaneous objection, our

review is for plain error. See United States v. Broadnax,

536 F.3d 695, 699 (7th Cir. 2008); United States v. Thompson,

27 F.3d 671, 673 (D.C. Cir. 1994). On plain error review,

we may reverse only if the jury probably would have

acquitted Foster if it had seen the omitted exhibit

during Foster’s case-in-chief rather than during closing

arguments. See United States v. Collins, 604 F.3d 481, 487

(7th Cir. 2010). Foster suffered no such prejudice from

the inadvertent omission of a single exhibit from his casein-chief, an exhibit he presented to the jury and used to

argue that the foreclosure showed his innocence.

Foster argues that reversal is still required because

the district court had already told the jury that any statements made during closing arguments may not be considered as evidence of innocence or guilt. But the district

court also informed the jury that, notwithstanding its

prior instruction to the contrary, Foster would be

allowed to present his omitted exhibit during his closing
No. 10-3198 25

argument. Absent extraordinary circumstances not

present in this case, we presume that the jury heeded this

instruction and gave Foster’s exhibit the consideration

it deserved. E.g., United States v. Ochoa-Zarate, 540 F.3d

613, 620 (7th Cir. 2008). Foster suffered no prejudice

here, let alone such substantial prejudice as would call

for reversal on plain error review.

IV. Sufficiency of the Evidence — Acme’s Insured Status

In a prosecution under the federal bank robbery

statute, the government must prove beyond a reasonable doubt that the victim financial institution falls

within the coverage of the law. If the victim is a statechartered credit union, the government must prove that

its accounts were insured by the National Credit

Union Administration at the time of the robbery. See 18

U.S.C. § 2113(a) & (g); United States v. Taylor, 728 F.2d

930, 933 (7th Cir. 1984). To meet that burden, the government presented the testimony of Acme’s vice president/comptroller, who identified two government exhibits as insurance certificates showing that Acme was

insured by the NCUA. According to the vice president, Acme had been insured by the NCUA since November 13, 1972, and was insured in the amount of

$100,000 per member account on the day it was robbed.

On cross-examination, and again on redirect examination, the vice president reaffirmed that Acme was

insured by the NCUA on the date of the robbery.

This insurance was in addition to Acme’s insurance

against robbery and protected Acme’s customers’
26 No. 10-3198

accounts against any losses they might incur if Acme

went out of business.

This evidence was sufficient to meet the government’s burden. See Taylor, 728 F.2d at 933 (finding sufficient bank vice president’s testimony that “clearly indicated to the jury that the bank was federally insured on”

the date of the offense). Even if we assume for the sake

of argument that the 30-year-old insurance certificates

on their own were not sufficient to show that Acme was

insured when it was robbed in 2006, see United States

v. Platenburg, 657 F.2d 797, 800 (5th Cir. 1981) (vacating

conviction where the only evidence of bank’s insurance

status was a certificate that “antedate[d] the charged

events by seven years”), the vice president explained that

those certificates remained effective at the time of the

robbery. More extensive testimony on this issue was

unnecessary, particularly since the vice president’s testimony “was uncontroverted by any evidence offered by

the defendant.” Taylor, 728 F.2d at 933 (rejecting defendant’s challenge to the sufficiency of the evidence

against him); see United States v. Knop, 701 F.2d 670, 672-

73 (7th Cir. 1983) (deeming evidence of bank’s insured

status sufficient where defendant never contested the

sufficiency of that evidence at trial).

V. Restoration of Foster’s Right to Bear Arms?

At trial, Foster stipulated that he had previously been

convicted of a felony. After his conviction and on

appeal, however, he argued that he could not have

violated the felon-in-possession statute because his civil
No. 10-3198 27

rights were restored following his most recent release

from state prison. Under 18 U.S.C. § 922(g)(1), it is unlawful for a person who has been convicted of “a crime

punishable by imprisonment for a term exceeding one

year” to possess “any firearm or ammunition.” A conviction for which a person has had his civil rights

restored, however, does not count as a “crime punishable

by imprisonment for a term exceeding one year” unless

the “restoration of civil rights expressly provides that the

person may not ship, transport, possess, or receive firearms.” 18 U.S.C. § 921(a)(20).

After his conviction, Foster moved to dismiss the indictment and to vacate the guilty verdict, claiming that

he “recalls a letter being sent to his mother’s house following his release from custody in March 2004,” which

he understood to have restored all of his civil liberties

in Illinois. In purported reliance on this letter, Foster

claims, he voted in elections in 2006 and 2008 and

appeared for jury duty in 2005. In support of these allegations, Foster attached his affidavit and copies of his

2004 Illinois voter registration, a voting history report, and

a certificate of jury service. The district court denied

Foster’s motion, finding that “there has really been no

actual evidence that [Foster’s] rights were restored” and

concluding that, even if Foster had presented such evidence, he waived this argument when he stipulated that

he had been convicted of a felony.

We agree with the district court as to both waiver

and the merits. The waiver was clear through the stipulation here. On the merits, Foster’s argument turns on
28 No. 10-3198

whether, to obtain a conviction under section 922(g)(1),

the government must prove beyond a reasonable doubt

that Foster’s rights had not been restored in the manner

described in section 921(a)(20). Although we have not

explicitly addressed this precise issue, we have decided

a closely related question, holding that a defendant

relying on the civil rights restoration provision in

section 921(a)(20) to challenge his classification as an

armed career criminal at sentencing must show, by a

preponderance of the evidence, that his civil rights

have been restored. See Gant v. United States, 627 F.3d 677,

682 (7th Cir. 2010). Other circuits have held that a conviction under section 922(g)(1) does not require the government to prove beyond a reasonable doubt that the

defendant’s civil rights have not been restored. United

States v. Bartelho, 71 F.3d 436, 440 (1st Cir. 1995); United

States v. Jackson, 57 F.3d 1012, 1016-17 (11th Cir. 1995);

United States v. Flower, 29 F.3d 530, 535 (10th Cir. 1994).

Requiring such proof by the government “would impose

an onerous burden,” seeing that a defendant “ordinarily

will be much better able to raise the issue of whether

his . . . civil rights have been restored.” Flower, 29 F.3d at

535; see Bartelho, 71 F.3d at 440 (refusing to require the

government to “refute every possibility that criminal

defendants have had their prior convictions nullified

or their civil rights restored”).

Consistent with our decision in Gant, we agree with the

reasoning of those decisions and conclude that a defendant’s claim that his civil rights have been restored is

essentially an affirmative defense to a criminal charge

under 18 U.S.C. § 922(g)(1). See Bartelho, 71 F.3d at 440.
No. 10-3198 29

It is a defendant’s responsibility to raise this issue and

to produce evidence showing that his civil rights have

been restored before the matter may be presented to the

jury for resolution. Id.; Jackson, 57 F.3d at 1017; Flower, 29

F.3d at 535-36; see United States v. Vitrano, 405 F.3d 506,

509 (7th Cir. 2005) (adopting similar interpretation of

section 921(a)(20) in context of armed career criminal

sentencing enhancements under section 924(e)(1)).

Because the civil rights restoration exception in

section 921(a)(20) is not an element of the offense

described in section 922(g), Foster’s indictment on that

charge was sufficient without alleging that Foster’s

civil rights had never been restored, and the government

had no obligation to present any evidence on the topic.

If Foster wanted to claim that the State of Illinois had

restored his right to carry firearms, he was obligated

to present evidence indicating that fact either prior to

or during his trial. The district court correctly denied

Foster’s post-judgment motion to dismiss the indictment and vacate his conviction.

VI. Sentencing Issues

Foster’s final argument is that the district court erred

when it sentenced him as an armed career offender

under 18 U.S.C. § 924(e). We consider this claim de novo,

United States v. Fife, 624 F.3d 441, 445 (7th Cir. 2010), except to the extent that the alleged error “implicates a

factual finding,” which we review for clear error. United

States v. Aljabari, 626 F.3d 940, 950 (7th Cir. 2010), citing

United States v. Gibbs, 578 F.3d 694, 695 (7th Cir. 2009).
30 No. 10-3198

Such findings of fact are entitled to deference unless we

have a definite and firm conviction that a mistake has

been made. United States v. Knox, 624 F.3d 865, 870 (7th

Cir. 2010).

Under the Armed Career Criminal Act, any person

convicted of being a felon in possession of a firearm who

has “three previous convictions . . . for a violent felony”

is subject to a mandatory minimum prison term of

15 years. 18 U.S.C. § 924(e)(1). Over Foster’s objection,

the district court deemed him an armed career criminal

because he had three prior violent felony convictions — for

robbery in 1980, burglary in 1983, and armed robbery

in 1987 — and sentenced him to 284 months in prison.

On appeal, Foster asserts that his 1980 robbery

conviction cannot be considered a violent felony under

section 924(e) because that conviction was invalid as a

matter of Illinois law. According to Foster, although he

was a minor at the time of that offense, the Illinois

state courts tried him as an adult. This is problematic, he

claims, because Illinois law allegedly allows minors to

be tried as adults only with an attorney’s consent, yet

no record of any such consent appears in the record.

Absent such consent, Foster says, his 1980 robbery conviction was “voidable” and “should not be counted” as a

predicate felony under section 924(e).

This argument is a non-starter. Unless the prior conviction used to enhance a defendant’s sentence under section 924(e) was obtained in violation of the defendant’s

right to counsel, the validity of that conviction may not

be challenged at sentencing. Custis v. United States, 511
No. 10-3198 31

U.S. 485, 487 (1994); United States v. Jiles, 102 F.3d 278, 280

(7th Cir. 1996). Although Foster argues that “the failure

to obtain the assistance of counsel with regard to the

waiver was the equivalent of having no legal representation,” such ineffective assistance of counsel is simply not

a permissible basis for a collateral attack. Custis, 511 U.S.

at 496 (refusing to allow collateral attack based on ineffective assistance of counsel because such a claim does

not “rise[ ] to the level of a jurisdictional defect resulting

from the failure to appoint counsel at all”).

Foster also argues that his 1980 robbery conviction

cannot be counted under section 924(e) because that

conviction falls outside the time limits set forth in certain

provisions of the Sentencing Guidelines. We rejected

this same argument in United States v. Wright, 48 F.3d 254,

255-56 (7th Cir. 1995). Although Foster invites us to

overturn Wright, he provides no explanation as to why

we should do so. “As we have said numerous times,

undeveloped arguments are deemed waived on appeal.” Collins, 604 F.3d at 487 n.2. This principle holds

particularly true when a litigant asks us to overturn

circuit precedent. See Santos v. United States, 461 F.3d

886, 894 (7th Cir. 2006). We see no reason — let alone

a compelling reason, id. at 891 — to revisit Wright.

Finally, Foster argues that none of his prior convictions could be considered under section 924(e), again

because Illinois allegedly restored his right to bear arms

following his most recent term of incarceration. As

under section 922(g)(1), a conviction for which a person

has had his civil rights restored does not count as a
32 No. 10-3198

violent felony under section 924(e) unless the “restoration

of civil rights expressly provides that the person may

not ship, transport, possess, or receive firearms.” 18 U.S.C.

§ 921(a)(20). In other words, if a state sends a document

to a convicted felon that seems to restore all civil

rights, “the conviction does not count for federal purposes unless the document warns the person about

a lingering firearms disability.” Buchmeier v. United States,

581 F.3d 561, 566 (7th Cir. 2009) (en banc). To prevail on

this argument, Foster “must show, by a preponderance

of the evidence, that his rights were restored.” Gant, 627

F.3d at 682, citing Vitrano, 405 F.3d at 509. The district

court did not specifically address this matter at sentencing, likely because it had already concluded in

denying Foster’s post-verdict motion to dismiss the

indictment that he had presented no actual evidence

that his rights were restored.

We agree that Foster has failed to muster sufficient

evidence to prove that Illinois restored his civil rights.

For one thing, Foster’s evidence indicating that he voted

and served on a jury after his release from incarceration

says nothing about whether he ever actually received a

letter from the state restoring his civil rights — Illinois

automatically restores a person’s right to vote when his

sentence expires. See Buchmeier, 581 F.3d at 564; 730 ILCS

5/5-5-5(c) (“A person sentenced to imprisonment shall

lose his right to vote until released from imprisonment.”).

And Illinois does not suspend a felon’s right to serve on

a jury in the first place. See Buchmeier, 581 F.3d at 564-65.

Once that evidence is set aside, all that remains is

Foster’s vague recollection that he received a letter re-
No. 10-3198 33

storing his civil rights. The letter itself, however, was

conspicuously absent from Foster’s submissions to the

district court. Lacking any additional evidence that

Illinois ever restored Foster’s right to carry a firearm,

the district court correctly concluded that Foster was

an armed career criminal under section 924(e).

The judgment of the district court is AFFIRMED.

7-21-11