### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

Nos. 13

‐ 2814, 13

‐ 3469

U NITED S TATES OF A MERICA

, Plaintiff

‐ Appellee

,

v.

K EON T HOMAS and S TYLES T AYLOR

, Defendants

‐ Appellants

.

____________________

Appeals from the United States District Court for the

Northern District of Indiana, Hammond Division.

No. 01 CR 73

— James T. Moody

, Judge

.

____________________

A RGUED A PRIL 22, 2015

— D ECIDED J ULY 20, 2015

____________________

Before P OSNER and K ANNE

, Circuit Judges

, and D ARRAH

,

District Judge

. *

P OSNER

, Circuit Judge

. In 2000 an almost totally deaf 73

‐

year

‐ old, the federally licensed owner of a gun store in

Hammond, Indiana, was shot to death and the store robbed

of many of its guns. Taylor and Thomas, the appellants,

were indicted for the murder and robbery and in 2004 con

‐

* Of the Northern District of Illinois, sitting by designation.2 Nos. 13

‐ 2814, 13

‐ 3469

victed by a jury of a variety of federal crimes, including

murder in the course of a robbery, and were sentenced to life

in prison. The convictions were vacated in 2011 because of a

possible violation of Batson v. Kentucky

, 476 U.S. 79 (1986),

arising from the government’s striking a black juror in the

first trial. United States v. Taylor

, 636 F.3d 901 (7th Cir. 2011).

Retried in 2012, both defendants were again convicted and

again sentenced to life imprisonment.

The defendants were drug dealers in Hammond. Their

drug dealing was not yielding them significant profits, and

they discussed robbery as a way of increasing their income.

Plaster casts of tire tracks next to the gun store, made by the

police shortly after the murder was discovered, indicated

that the tracks could have been created by Thomas’s Cadil

‐

lac. And a couple of days after the murder Taylor told a 14

‐

year

‐ old girl named Precious Walker that he and a man

named Bud White had killed the proprietor of the gun store

and taken guns from the store. Taylor made a similar confes

‐

sion to a jeweler.

As a result of searches, and a seizure of guns during a

traffic stop, a number of guns stolen from the gun store dur

‐ ing the robbery were traced to Taylor and Thomas. Thomas

admitted to investigators that the Cadillac that had been

used in the robbery was his, though he denied his own in

‐

volvement in the murder or robbery.

At trial the government called Montrell, Taylor’s brother,

who had turned 15 shortly after the murder, as a witness.

Admitting that he would lie or die for his brother, Montrell

testified that neither Taylor nor Thomas had ever confessed

to him about being involved in the murder or robbery. But

this testimony, the government established, was contrary toNos. 13

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testimony that Montrell had given both at the first trial and

at grand jury hearings in 2001 and 2003. Transcripts of his

earlier testimony were admitted into evidence pursuant to

Fed. R. Evid. 801(d)(1), which allows the admission of a wit

‐

ness’s prior inconsistent testimony given under oath.

Montrell had been interviewed by police shortly after the

murder and robbery. Asked at the second trial about the dis

‐ crepancies between what he had told the officers at the in

‐

terview and his current testimony, he said they’d used

threats to get him to give testimony implicating his brother

in the murder and robbery—threats such as that he would

be put in solitary confinement, or even subjected to the death

penalty, for having been involved in the robbery. He added

that only after he’d agreed to tell the interrogators what they

wanted him to tell them did they tape his statement. Yet

he’d signed a waiver of rights form, and one of the interro

‐

gators testified that Montrell had not been threatened and

that the statements he made before the recording began were

generally consistent with his recorded statements. The judge

ruled that the videotape of the interrogation, which included

such statements by Montrell as that his brother had told him

that he had “hit a lick” and “had to kill the gun store man,

but I got a gank of guns,” was admissible to impeach Mon

‐

trell’s testimony at the current trial.

An adult by the time of this trial, Montrell was free to tes

‐ tify and did testify that he had been coerced in his initial in

‐

terview back in 2001, and his lawyer was free to and did

point to the failure of the police to record the entire inter

‐

view as a suspicious circumstance; for presumably had they

threatened him the threats would have preceded the admis

‐

sions and they would have wanted only the admissions rec

‐4 Nos. 13

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orded. If the statement made by Montrell was coerced and

demonstrably unreliable, and its admission in evidence in

the present case could not be found to be a harmless error,

the defendants would be entitled to a new trial. See Arizona

v. Fulminante, 499 U.S. 279, 306–12 (1991); Samuel v. Frank

,

525 F.3d 566, 569 (7th Cir. 2008); Buckley v. Fitzsimmons

, 20

F.3d 789, 794–95 (7th Cir. 1994). Only the argument that the

statement was coerced has any possible merit, however, and

that argument is based entirely on Montrell’s testimony,

which conflicts not only with his interrogator’s testimony

but also with sworn statements that Montrell had given be

‐

fore the 2012 trial. Those statements were consistent with the

statements on the videotape and had not been coerced.

Fear of perjury charges, which Montrell claims drove him

to give sworn testimony that matched his initial interview, is

not coercion. Sawyer v. Mullaney

, 510 F.2d 1220, 1221 (1st Cir.

1975); Hinton v. Uchtman

, 395 F.3d 810, 822 (7th Cir. 2005)

(concurring opinion); United States v. Collazo

, 798 F. Supp.

513, 518 (N.D. Ind. 1992). Otherwise a person who perjured

himself would acquire a license to repeat the perjured state

‐

ment indefinitely, since for him to tell the truth would

amount to confessing to the perjury. As for the videotaped

statement that Montrell claimed had been coerced, it was

admitted only for the purpose of impeaching (that is, con

‐ tradicting or undermining) his testimony at trial, and it was

consistent with other witnesses’ reports of Taylor’s confes

‐

sions as well as with other evidence presented by the prose

‐

cution.

Arthur Vibanco, 12 years old at the time of the robbery,

lived next door to the gun store. In their opening statements

the defendants’ lawyers told the jury that the defense wouldNos. 13

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‐ 3469 5

call Vibanco to testify because he had been “an eyewitness to

this crime”; that he would testify that he had seen five men

in a Cadillac enter the store, heard two shots, and seen the

men leave and get back into the Cadillac; that his description

of the Cadillac would prove that it had no connection with

either Thomas or Taylor but rather with Charles “Bud”

White; and that Thomas was not one of the men seen exiting

and later reentering the car.

Taylor’s lawyer did call Vibanco, but as a witness for the

defense he proved to be a dud. He testified to having

memory problems, and that he remembered nothing about

the crime. Yet shortly after the crime he had been inter

‐

viewed by police, and the defense proposed to introduce the

police report of that interview as evidence of his description

of the Cadillac that he claimed to have seen at the scene of

the crime. The police had distributed a flyer asking the pub

‐

lic whether anyone knew of a Cadillac answering to the de

‐ scription that the police report attributed to Vibanco. This

was the description, it appears, to which Taylor’s lawyer

was alluding when he gave the jury his preview of Vibanco’s

testimony.

At this juncture the court recessed the trial for the night

and during the recess the prosecutor reminded Taylor’s

lawyer that his client had given the government a “proffer”

(a statement given to the government by a criminal suspect

or defendant as a possible basis for a plea agreement that

will enable him to receive a lighter sentence than if he insists

on a trial and is convicted) admitting that he was in Thom

‐

as’s Cadillac at the robbery scene and knew the robbery was

taking place. The terms of the proffer permitted the prosecu

‐

tion to use it against Taylor if he presented evidence incon

‐6 Nos. 13

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‐ 3469

sistent with it; and so if Vibanco’s description of the Cadillac

was placed in evidence by the defense the prosecution

would be allowed to use the proffer to rebut it. The defense

lawyers’ response was to ask that Vibanco’s testimony be

stricken, which it was, and to rescind their offer of the police

report of his statement.

That was not to be the last word about Vibanco. For in

closing argument the prosecutor said, without objection by

defense counsel, “I really don’t know what the defendants

were gonna talk about in their opening about Mr. Vibanco

seeing some other car there; but, obviously, that never came

to fruition. So—even Keon Thomas admitted his car was

there.” We can’t see what was objectionable in the prosecu

‐

tor’s statement, and the defense did not object to it. Thomas

had indeed admitted—independently of Taylor’s proffer—

that his car was there even though he denied that he was in

‐

volved in the crimes. Since the defense had claimed in its

opening statements that Vibanco had seen a car at the gun

store that was not Thomas’s, it was permissible for the pros

‐

ecution to point out that the defense had offered no evidence

in support of that theory.

The defense makes much of the prosecutor’s brief exami

‐

nation of Tjorra Payton, Taylor’s girlfriend at the time of the

crime. The prosecutor asked her whether shortly after the

crime she had found a gun in her laundry basket; if so it

probably had been hidden there by Taylor. She testified that

she had no recollection of it. Yet she had testified before the

grand jury that she had found the gun there. The judge re

‐

fused to admit the transcript of her grand jury testimony,

which was error, because grand jury testimony is admissible

as evidence when the witness has no recollection of it. Fed.Nos. 13

‐ 2814, 13

‐ 3469 7

R. Evid. 801(d)(1)(A); United States v. Cooper

, 767 F.3d 721,

728 (7th Cir. 2014). The government then showed her a tran

‐ script of her testimony and asked her whether it refreshed

her recollection. She said it didn’t. The government pressed

her, saying “You still have no memory of finding a gun in

your hamper?” and “Do you have any memory of confront

‐ ing Styles Taylor and telling him to get the gun out of your

apartment?” After she again denied any recollection, the

matter was dropped.

The defendants argue that it was improper for the gov

‐

ernment to call Payton at all because it knew before the trial

began that she claimed to have no memory of the events. But

the government could call her in order to introduce her

grand jury testimony in evidence, consistently with Rule

801(d)(1)(A), as explained above, should she deny having

any recollection of that testimony.

The defendants also complain that the government in

‐

sinuated that Payton had testified to the grand jury that

she’d found the gun—as indeed she had. While in other cir

‐

cumstances the government’s asking Payton questions about

what she remembered of her prior statement after she said

that reviewing that statement had not refreshed her memory

would be an improper tactic because indicative of what her

prior statement had been, it was not an improper tactic in

this case because her grand jury testimony was as we said

admissible in evidence.

The son of the owner of the gun store was a Hammond

firefighter, and one of the jurors was a former fire chief of

East Chicago, which is adjacent to Hammond. Several fire

‐ fighters had been among the first responders to the murder,

and one of them gave brief testimony about what he had8 Nos. 13

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‐ 3469

found when he arrived. The victim’s son, who had been

summoned to the scene, also testified. There were no objec

‐

tions to the testimony of the two firefighters. Nor were there

any objections to the presence, at the closing argument, of

about twenty uniformed firefighters in the audience section

of the courtroom. But after the jury returned the guilty ver

‐

dicts, defense counsel moved for a new trial on the ground

that the presence of the uniformed firefighters had deprived

the defendants of a fair trial.

The judge denied the motion. He was justified in doing

so, quite apart from the failure of the defendants to have

made a timely objection to the presence of the firefighters,

though the defendants (and their counsel) were aware of

their presence. The prosecutor had made no reference to the

firefighters in closing argument. Nor is there any suggestion

that they fidgeted, made faces, or in any way disrupted the

trial, impaired its decorum, or detracted from its gravity. It is

not suggested that their presence was a prosecutorial ploy,

or that they were present for any reason other than that the

murder victim had been the father of one of them. And for

all we know the only reason they were wearing their uni

‐

forms was that they were taking a brief break from duty to

hear the closing arguments. Defense counsel do not even tell

us how large the courtroom is, how many spectators it seats,

and what fraction of the audience consisted of the uniformed

firefighters.

The defendants haven’t made a case for intimidation or

improper influence of the jury. As pointed out in Smith v.

Farley

, 59 F.3d 659, 664 (7th Cir. 1995), “if you kill a police

‐

man and are put on trial for the crime, you must expect the

courtroom audience to include policemen,” and if one re

‐Nos. 13

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‐ 3469 9

places “policeman” with “firefighter’s father” and “police

‐

men” with “firefighters,” this case involves a similar expec

‐

tation. In Smith we upheld the defendant’s death sentence,

and in Carey v. Musladin

, 549 U.S. 70, 77 (2006), the Supreme

Court ruled that it had not violated the defendant’s right to a

fair trial for the court to have allowed members of the vic

‐

tim’s family to attend the trial while wearing buttons dis

‐ playing the victim’s picture. It’s true that in Woods v. Dugger

,

923 F.2d 1454, 1458–59 (11th Cir. 1991), the defendant’s mur

‐

der conviction was overturned in part because of the num

‐

ber of uniformed prison guards who attended the trial, but

the decision was also based on the fact that the victim was a

prison guard killed while on duty, that there was extensive

pretrial publicity about dangers to prison guards, and that

several jurors had relatives employed in the prison system.

We turn now to the defendants’ challenges to their sen

‐

tences of life imprisonment. (As in United States v. Vance

, 764

F.3d 667, 676–77 (7th Cir. 2014), the judge in this case im

‐ posed a term of supervised release on the defendants, which

since supervised release doesn’t begin until the defendant is

released from prison will become moot if they die in prison,

as they will unless their lifetime prison sentences are com

‐ muted.) Among other things they contest the judge’s adding

two guideline levels for their having attacked a “vulnerable

victim.” U.S.S.G. § 3A1.1(b)(1). The government points out

that because the defendants’ guideline score was the maxi

‐

mum, 43, without the enhancement, and life imprisonment

is recommended for convicted defendants having such a

score, the enhancement is unlikely to have affected their sen

‐

tence. But it could have. A recommendation is not a com

‐

mand, and so a lower score might have influenced the

judge’s choice of sentence. There is also the possibility, re

‐10 Nos. 13

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‐ 3469

mote though it may be, of either a successful bid for a post

‐

conviction remedy or a pardon. (The possibility that a life

sentence based on a guidelines score of 43 might be convert

‐

ed to a sentence of years were there no basis for

a vulnerable

‐ victim or other enhancement suggests a need to

reexamine cases such as United States v. Fletcher

, 763 F.3d

711, 717–18 (7th Cir. 2014), that have held that a guideline

error is harmless if it doesn’t affect the defendant’s guideline

range.)

A defendant, to be given the vulnerable

‐ victim enhance

‐

ment, must have been, or at least should have been, aware of

his victim’s vulnerability. U.S.S.G. § 3A1.1(b)(1) (”knew or

should have known that a victim of the offense was a vul

‐

nerable victim”). The defendants argue that they didn’t

know their victim was deaf and wore a pacemaker (though

the relevance of the pacemaker to his vulnerability is un

‐ clear), and that they shot him merely because he reached for

a gun, and would have done so whatever his age or impair

‐

ments. But as is apparent from the language of the guideline

authorizing the enhancement, the crime need not have been

motivated by the victim’s vulnerability. The judge was enti

‐

tled to find that the defendants probably did know, and cer

‐ tainly should have known, of their victim’s vulnerability,

and that’s enough for the enhancement. The gun store they

entered was not the only one in Hammond, and they may

have picked it because they were aware of the owner’s vul

‐ nerability. As soon as they entered they would have seen

that he was elderly, and they may well have noticed that he

didn’t hear them enter because, although the door had a

loud electronic buzzer connected to it, he couldn’t hear it,

because of his deafness.Nos. 13

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The judge gave both defendants a guideline enhance

‐

ment for obstruction of justice, and Taylor challenges his en

‐

hancement on this appeal. The challenge fails. He obstructed

justice by threatening a witness (Precious Walker)—he con

‐

fessed the crime to her and told her he’d kill her if she told

anyone.

By way of further challenge to their sentences the de

‐

fendants argue that they had had such awful upbringings,

which jointly with their personal characteristics were re

‐ sponsible for their criminality, that they should have been

given shorter sentences. Taylor asked the judge to impose a

sentence of 25 years on him, which because he’s been im

‐ prisoned since his arrest in 2000 would entitle him to be re

‐

leased in 10 years (less if he gets time off for good behavior),

when he will be about to turn 45. Thomas requested a sen

‐

tence of 30 years, which would entitle him to be released in

15 years, when he’ll be almost 56. And upon release the de

‐

fendants will face five years of supervised release, restricting

their conduct and precipitating revocation and a prison sen

‐

tence should they disobey any of the conditions of super

‐

vised release.

In sentencing each defendant to life imprisonment the

judge recited just boilerplate—that a lower than guidelines

sentence, “as requested by the defendant, is just not war

‐

ranted under the facts and circumstances of this case.

... This

sentence reflects the seriousness of the offenses, promotes

respect for the law, and provides just punishment for these

crimes. It is sufficient but not greater than necessary to hold

this defendant accountable for his criminal conduct.” See 18

U.S.C. § 3553(a). And so on in this vein. The judge said noth

‐ ing about the history and characteristics of either defendant.12 Nos. 13

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‐ 3469

This was a potentially serious omission because a sentencing

judge’s failure to address a defendant’s substantial argument

for mitigation of his sentence can require resentencing, see,

e.g., United States v. Gary

, 613 F.3d 706, 709 (7th Cir. 2010),

though the emphasis falls on “substantial.”

Taylor had been born in 1980 to an unmarried woman

who did not want to have a child. When pregnant with him

she indulged in heavy drinking and consumption of mariju

‐

ana and cocaine, and drank rum with quinine capsules in

order to kill the fetus. Obviously he survived, but he was

born three months early, weighing only about three and a

half pounds. His mother made clear that she cared only

about her other children, beat him gratuitously, blew mari

‐ juana smoke in his face to calm him down, and abandoned

him for long periods. An aunt beat him routinely, including

with extension cords and belts—instruments also used by

his mother to beat him. He bore scars from the beatings. His

mother abused him verbally as well, calling him “little son of

a bitch,” “little motherfucker,” and “bastard” (which literally

he was, but that wasn’t the sense in which his mother was

using the word). Throughout his childhood his mother

smoked crack cocaine and consumed quantities of cocaine,

marijuana, and alcohol, as well, including in his presence.

Her home—which was his home—was a well

‐ known site for

gambling and prostitution.

Left largely to himself, Taylor by the age of four was be

‐ ing used by adults to help them commit burglaries. Teenag

‐

ers in the neighborhood introduced him to gambling and

drug dealing when he was eight years old. A different aunt,

and his grandmother, made valiant efforts to take care of

him but both were dead of cancer by the time he was in hisNos. 13

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teens. He was a terrible student, with cognitive difficulties

that may have been related to his mother’s heavy drinking

during her pregnancy. At age 11 he was convicted of burgla

‐

ry, at 16 of armed robbery, and at 18 of possession of illegal

drugs, though he was jailed for only two days for the drug

offense. He was as we said 19 when he participated in the

murder of the gun store’s owner and the robbery of the

store’s guns.

The facts regarding Taylor’s personal history, if true

(they have not yet been submitted to full evidentiary proce

‐ dure), are possible grounds for mitigation—for reducing his

sentence from life to a term of years. For they suggest that

external forces beyond his ability to control created cognitive

and psychological impairments that greatly diminished his

ability to resist engaging in serious criminal activity. When

substantial grounds for mitigation are presented, the sen

‐ tencing judge must explain his reasons for rejecting them,

see, e.g., United States v. Morris

, 775 F.3d 882, 886–88 (7th Cir.

2015), and this the judge failed to do. The government agrees

that Taylor’s sentence must therefore be vacated and the

case remanded for resentencing. Although Thomas’s up

‐ bringing was not as awful as Taylor’s, it was similar enough

to persuade the government that he too is entitled to be re

‐

sentenced. In all other respects (including rulings that we

have not discussed because the defendants’ challenges to

them are plainly devoid of merit) the judgments are af

‐

firmed.

A FFIRMED IN P ART

, R EVERSED IN P ART

, AND R EMANDED