Despite constitutional violations, harmless error downs defendants in bank robbery case

By Joe Forward, Legal Writer, State Bar of Wisconsin

Nov. 5, 2010 – Two defendants, convicted of crimes stemming from bank robberies in Madison, proved their constitutional rights were violated at trial in federal district court. But a U.S. Court of Appeals for the Seventh Circuit panel recently concluded the errors were harmless.

Evidence linked Prince Beck and Corey Thomas to bank robberies that occurred in May of 2008. Investigation of the first robbery, on May 9, revealed that Beck called the bank on the morning of the robbery. Video surveillance placed Thomas at the scene the day before.

After the second robbery, on May 21, an associate (Michael Simmons) was arrested at the scene and later, after no one bailed him out, gave a statement implicating Beck and Thomas.

The government also offered phone call recordings that Simmons made to Beck from jail, in which Beck made incriminating statements implying his own connection to the robbery. Both also spoke of other gang members that were tied to the robbery.

At trial, Simmons testified that he was a gang member. The defense began questioning Simmons about his gang activity, and inquired specifically about other gang members mentioned in the phone conversations between Beck and Simmons. The government objected.

At sidebar, the defense explained its theory of defense: “Simmons was protecting higher-ups in the [gang] by framing the defendants who were innocent, lower or non-members of the gang.” The defense argued that they “be allowed to confront Simmons about his gang membership” to show his motive to lie and frame the defendants.

U.S. District Court for the Western District of Wisconsin Judge Barbara Crabb sustained the government’s objection to that line of questioning. Thus, the defense could not question Simmons about his gang membership or ask whether he was protecting other gang members.

In addition, the government called Beck’s probation officer to the stand, relating to the May 9 robbery. The officer identified herself as a probation officer, and testified that Beck gave her the same phone number that was used to call the bank on the morning of the robbery.

Ultimately, a jury convicted Beck and Thomas on charges related to the May 21 bank robbery, but both were acquitted on charges related to the May 9 robbery. They appealed.

Violation of Sixth Amendment rights

Both defendants in U.S. v. Beck, Nos. 092337 & 09-2438 (November 5, 2010) argued that it was error for the district court judge to restrict cross-examination of Simmons. Such restriction, they argued, violated their constitutional right to cross-examine the witnesses against them under the Sixth Amendment to the U.S. Constitution.

The government argued that the defense lacked a good-faith basis for the inquiry, it was improper under Federal Rule of Evidence 404(b), and it was irrelevant. The appeals court rejected all three of the government’s arguments.

First, the appeals court found that defense counsel articulated “several facts and corresponding inferences” to support a good-faith basis for the questioning.

Second, the court found that defense counsel’s questioning did not violate rule 404(b), which bars “[e]vidence of other crimes, wrongs, or acts … to prove the character of a person in order to show action in conformity therewith.”

“[T]he questions were not aimed at showing that because Simmons is a gang member, he lies generally and was doing so here,” the panel wrote. “Instead, it was offered to show why he was lying: that he was covering up for the real robbers … who were higher ranking gang members.”

Third, the appeals court found that defense counsel’s questions were not irrelevant because “the questions were clearly probative of Simmons’s bias.”

The court of appeals noted that when the defense is prevented from exposing a witness’s bias, the Sixth Amendment is implicated. Refusing to allow the defense to question Simmons about his gang membership and allegiance, the appeals court concluded, “kept the defendants from attempting to expose Simmons’s bias.”

Thus, the court held the district court judge erred in preventing the defense from questioning Simmons about his gang membership to show a potential bias.

Harmless error 

Despite the ruling, the appeals panel concluded that restricting defense counsel’s questioning of Simmons about gang membership, thereby violating the Confrontation Clause, was harmless error beyond a reasonable doubt.

The appeals court reasoned that other physical evidence established that Beck and Thomas robbed the bank, including the jail phone calls between Beck and Simmons, Thomas’s prints on the getaway vehicle, photos of the guns used in the robbery, and other testimony. 

Evidence of prior convictions harmless 

Beck argued that it was error to allow the probation officer’s testimony because the Federal Rules of Evidence do not allow evidence concerning previous convictions. Although he was acquitted on the May 9 charges, Beck said the error “tainted the whole trial.”

The appeals court agreed with Beck, concluding that the district court erred in allowing the probation officer to testify.

“The obvious inference at trial was that she was Beck’s probation officer and that he had been previously convicted of a crime,” wrote Judge Daniel Manion. “And what little probative value there was in having the probation officer testify was substantially outweighed by the danger of unfair prejudice that comes with the jury learning the defendant is a convicted felon.”

However, the court concluded that the error in allowing Beck’s probation officer to testify was harmless beyond a reasonable doubt because of the strength of other evidence against him. Specifically, another witness testified that Beck was the primary user of the phone that was used to call the bank the morning of the May 9 robbery.

Thus, the appeals court affirmed the district court’s conviction judgments.