In the
United States Court of Appeals
For the Seventh Circuit
No. 08-2558
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
O VERTIS S YKES,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 07 CR 857—John F. Grady, Judge.
A RGUED A PRIL 6, 2009—D ECIDED JULY 19, 2010
Before B AUER, S YKES, and T INDER, Circuit Judges.
S YKES, Circuit Judge. In a trial he chose not to
attend, Overtis Sykes was convicted of four counts of
bank robbery in violation of 18 U.S.C. § 2113(a). On appeal
he advances three reasons why we should reverse his
convictions. First, he claims that the charges against him
should have been dismissed with prejudice as a result of
a Speedy Trial Act violation. The district court noted
the violation but dismissed the charges without preju-
2 No. 08-2558
dice, which Sykes contends was an abuse of discretion.
Second, Sykes argues he was deprived of his Fifth Amend-
ment right to meaningful access to the courts under
Bounds v. Smith, 430 U.S. 817 (1977), because for a five-
week period before his trial, he was incarcerated in a
state prison that had no law library. Third, Sykes chal-
lenges the district court’s decision to permit jurors to
directly question the witnesses.
We affirm. The district court did not abuse its discre-
tion when it dismissed the charges against Sykes
without prejudice. The judge thoroughly considered the
relevant statutory factors, see 18 U.S.C. § 3162(a)(2), and
reasonably concluded that on balance, those factors
favored dismissal without prejudice. Nor does the record
support Sykes’s claim that his pretrial detention
deprived him of meaningful access to the courts. When
he complained to the court, the judge asked whether he
wanted a continuance to have more time to prepare a
defense, and he said he did not. Finally, although the
district court should not have given jurors free rein
to directly question the witnesses, Sykes has not estab-
lished prejudice.
I. Background
A. The Bank Robberies
Over a 12-day period in June 2006, four banks were
robbed on Chicago’s North Side. In each robbery a heavy-
set African-American man walked into the bank, presented
a note to the teller, and left with cash. The note from the
No. 08-2558 3
first robbery read: “This is a robbery[.] PUT THE 100s AND
50s on the counter[.] NO FUNNY MONEY[.] I HAVE
A GUN[.] Y OU H AVE 15 S ECONDS.” The others used
similar language. Security cameras captured images of
the robber in three of the robberies, and the robber left a
drink carton bearing his fingerprints at the scene of the
third robbery.
On June 21, 2006, four days after the last robbery, Sykes
and his wife, Laura Barkalow, 1 were arrested at a
nearby motel. Officers recovered about $500 in cash and
a demand note stating: “This is a robbery[.] Put all loose
bills on the counter[.] I HAVE A GUN[.] YOU HAVE
15 SECONDS[.]” Sykes’s fingerprints were on the notes
from the second and third robberies, and the finger-
prints on the drink carton left behind at the third robbery
matched his. Barkalow’s prints were found on the notes
from three of the robberies. In addition, Sykes fit the
physical description of the robber provided by wit-
nesses, and tellers from the first and fourth robberies
identified Sykes in a photo array.
B. Pretrial Proceedings
Unfortunately, neither the pretrial proceedings nor the
trial ran smoothly. Sykes was charged by criminal com-
plaint in June 2006, and a month later a grand jury re-
turned an indictment charging him with three of the four
1
Barkalow was tried separately. She is mentioned here only
insofar as it is relevant to Sykes’s appeal.
4 No. 08-2558
bank robberies. In early August Sykes was arraigned,
entered a plea of not guilty on all counts, and exercised
his right of self-representation. See Faretta v. California,
422 U.S. 806 (1975). The district court appointed Attorney
Robert Korenkiewicz as standby counsel, and because
Sykes was making some strange arguments to the court,
ordered a psychiatric evaluation to determine if he
was competent to stand trial.2
In January 2007 the court found Sykes competent to
stand trial and scheduled a mid-May trial. In early
May 2007, the government requested a continuance
pending receipt of fingerprint evidence linking Sykes
to the then-uncharged robbery. The government also
2
At the August 7 status hearing, Sykes told the court:
If I may, I am a secured party on behalf of Mr. Sykes. . . .
I explained to the Court on other occasions that I consider
this a dispute over property. I’m a secured property over
this entity. So the reason that I am here today is not a
general appearance, I am here by special visit to make an
offer, to exchange the bond for a guilty plea and use it as
my exemption. My exemption has been registered with the
Secretary of the Treasury, and that’s the reason why
I’m here today.
Sykes made similarly bizarre arguments throughout the case.
For example, he contended that Title 18 of the United States
Code was not properly enacted, that the court had no jurisdic-
tion over him because he was a sovereign, that the government
could not prosecute the case because it was not a flesh-and-
blood person, and that the Uniform Commercial Code somehow
relieved him of criminal liability.
No. 08-2558 5
moved to sever the trials of Sykes and Barkalow under
Bruton v. United States, 391 U.S. 123 (1968). On May 30 the
government informed the court that it was seeking a
superseding indictment for the remaining robbery; the
indictment was later returned on July 24, 2007. The fol-
lowing day, Sykes pleaded not guilty to all counts, and
the court scheduled trial for November 19, 2007.
On November 14, 2007, Sykes filed a motion to dismiss
the superseding indictment for a violation of the Speedy
Trial Act, 18 U.S.C. §§ 3161 et seq. Sykes pushed for a
dismissal with prejudice in light of the length of the
delay, which included 224 nonexcludable days.3 The
prosecutor said he had no objection to a dismissal as
long as it was without prejudice. On December 20, 2007,
the court dismissed the charges without prejudice and
ordered Sykes released, which occurred on December 31.
The same day as the dismissal, a grand jury re-
turned a new indictment charging the same four bank rob-
beries. Sykes remained free from December 31 until his ar-
raignment on January 16, 2008, where he again made
some bizarre arguments and otherwise disrupted the
proceedings. The judge held him in contempt and entered
not-guilty pleas on his behalf. At a January 30 status
hearing, Sykes asked to be released to prepare for trial.
The judge initially granted his request and set trial for
March 10. The following day, however, while Sykes was
3
The parties spend considerable time arguing about the
proper number of nonexcludable days. We will assume that
Sykes’s calculation of 224 days is correct.
6 No. 08-2558
still in custody, the judge reconsidered this decision
and vacated the release order, concluding that Sykes
was too risky to be released and that the presence of
standby counsel was sufficient to assist Sykes in
preparing for trial.
At a status hearing on March 6, four days before the
scheduled trial, Sykes moved to dismiss the charges
based on alleged violations of his Fifth Amendment right
to meaningful access to the courts and his Sixth Amend-
ment right to a speedy trial. Sykes explained that since
January 16, 2008, he had been incarcerated at a state
prison in Kankakee, Illinois, and that the prison had no
law library. Sykes was apparently relying on other
inmates to assist him in mailing legal documents and
telephoning potential alibi witnesses and his standby
counsel. Sykes told the judge that his “numerous” calls to
Korenkiewicz “would not go through.” Korenkiewicz
confirmed that he and Sykes had not spoken during
the time Sykes was held in the Kankakee prison.
Korenkiewicz explained that he initially thought Sykes
was housed at the Metropolitan Correctional Center
(“MCC”) in Chicago and had delivered trial-preparation
material there for Sykes. The MCC did not forward these
materials to Sykes at Kankakee or return them to
Korenkiewicz.
Sykes told the court he had three alibi witnesses who
would help him establish a defense, but that the wit-
nesses had gone missing in light of the long pretrial de-
lay. Korenkiewicz said he had not heard of these potential
witnesses until earlier on March 6 and that Sykes
No. 08-2558 7
never asked him to try to contact these witnesses. The
prosecutor hadn’t heard of these witnesses, either, and
noted the probable violation of Rule 12.1 of the Fed-
eral Rules of Criminal Procedure, which requires the
defendant to give notice of alibi witnesses.
The judge asked Sykes if he was requesting a continu-
ance “to permit Mr. Korenkiewicz or a court-appointed
investigator to locate and interview these three alibi
witnesses you claim to have.” Sykes twice answered “no”
and said “[t]he damage has already happened.” The court
responded: “You have answered my question, you
are not moving for a continuance, and, therefore, the
question of a trial continuance is not before the Court. We
will go to trial on Monday morning.” The hearing then
got out of hand. Sykes alleged that the trial would be
“a show trial” and that “[t]here is no defense.” He inter-
rupted the judge on several occasions, and the judge
again held him in contempt. Sykes vowed he would
not attend his trial and that he would not permit
Korenkiewicz to attend on his behalf.
C. Trial
Trial finally commenced on March 10, 2008, and lasted
two days. True to his word, Sykes did not attend and
forbade Korenkiewicz from attending; they watched
through a video/audio monitor but otherwise did not
participate in the trial. After the prosecution presented
its first witness, the judge sua sponte invited the jury’s
participation:
8 No. 08-2558
Because Mr. Sykes is not present, I’m going to permit
the jury to ask any questions you like of the witnesses
as they appear. You don’t have to, but if there’s any
question in your mind about what the witness said
or you’re confused about anything, go ahead and
ask the witness.
Jurors seized this opportunity and posed many questions
to the witnesses. Notably, while the first witness was
still on the stand, a juror spoke up and asked the judge,
“Does [the] defendant not have a defense?” The following
exchange ensued:
THE COURT: That would be up to him.
JUROR: He has no defense attorney here, though,
present?
THE COURT: I appointed what we call a standby
attorney for Mr. Sykes. He demanded the right to
represent himself, which he has. Under the Constitu-
tion, a person has the right to represent himself. You
don’t have to have a lawyer.
Mr. Sykes insisted on representing himself; but as
is customary in cases of that kind, I appointed standby
counsel for him to consult if he wished to do so. So,
we have both Mr. Sykes and standby counsel, and
Mr. Sykes has instructed his standby counsel not to
appear today or during this trial.
Mr. Sykes takes the position, for reasons that
I won’t go into, that this Court has no jurisdiction over
him; and this certainly is one reason he’s decided to
waive his presence.
No. 08-2558 9
JUROR: Thank you.
THE COURT: But I do want the jury to know that I’ve
given Mr. Sykes every opportunity to defend, and
he has declined to appear in this trial.
The jurors asked the first witness a few more questions,
and the judge then added this instruction:
While you’re reviewing that, let me remind you—or
maybe this is the first time I’ve said it. Mr. Sykes’s
absence has nothing to do with whether he’s guilty or
not. You are to decide whether he’s guilty or not
based on the evidence that is presented and based
on the government’s burden to prove beyond a rea-
sonable doubt that Mr. Sykes is guilty, but you should
not hold against him the fact that he’s not present.
After this unconventional trial, the jury found Sykes
guilty on all counts, and the court sentenced him to 240
months’ imprisonment.
II. Discussion
Sykes presents three arguments on appeal. First, he
contends that the district court should have dismissed
the charges against him with prejudice based on the
conceded violation of the Speedy Trial Act. Second, Sykes
argues that his pretrial detention in the Kankakee
prison violated his Fifth Amendment right to meaningful
access to the courts under Bounds v. Smith, 430 U.S. 817
(1977). Finally, he challenges the district court’s decision
to allow jurors to directly question the witnesses.
10 No. 08-2558
A. Speedy Trial Act Violation
The Speedy Trial Act generally requires a federal crimi-
nal trial to begin within 70 days from the date the defen-
dant is charged or makes his initial appearance. 18 U.S.C.
§ 3161(c)(1). Section 3161(h) provides a number of exclu-
sions to the 70-day rule. After 70 nonexcludable days
have passed, the Act requires the district court to
dismiss the charges “on motion of the defendant.” Id.
§ 3162(a)(2). Here, Sykes made the appropriate motion,
and the district court dismissed the charges.
The inquiry in this case focuses on whether the district
court selected the appropriate remedy for the violation of
the Speedy Trial Act. The Speedy Trial Act gives district
courts substantial discretion to determine whether to
dismiss the indictment with or without prejudice, re-
quiring the court to consider, “among others, each of the
following factors: the seriousness of the offense; the
facts and circumstances of the case which led to the
dismissal; and the impact of a reprosecution on the ad-
ministration of this chapter and on the administration
of justice.” Id.; United States v. Taylor, 487 U.S. 326, 333
(1988). That the court should consider whether the de-
fendant has been prejudiced is implicit in this broadly
stated formula. Taylor, 487 U.S. at 341 (“[A]lthough the
absence of prejudice is not dispositive, in this case it
is another consideration in favor of permitting reprose-
cution.”); id. at 344 (Scalia, J., concurring in part) (“[T]hat
prejudice to the defendant is one of the factors that the
phrase ‘among others’ in § 3162(a)(2) refers to . . . seem[s]
to me so utterly clear from the text of the legislation . . . .”).
No. 08-2558 11
We review the district court’s decision to dismiss with-
out prejudice for abuse of discretion, United States v.
Killingsworth, 507 F.3d 1087, 1090 (7th Cir. 2007), but
“undertake more substantive scrutiny to ensure that the
judgment is supported in terms of the factors identified
in the statute,” Taylor, 487 U.S. at 337. Here, the judge
explained that balancing the statutory factors was “easy
to do.” The judge noted that the bank-robbery charges
against Sykes were “quite serious” and a dismissal
with prejudice would result in “a gross miscarriage of
justice” given the gravity of the offenses. The judge also
said the delay had been “unconscious” on the part of
the government and the court, and instead was based
almost “entirely [on] the antics of Mr. Sykes, which I now
believe to have been totally a product of his imaginative
efforts to defend the case based upon notions that he
knows are far-fetched and not supported by any rational
legal basis.” The judge also noted that Sykes did not
bring the Speedy Trial Act violation to the court’s atten-
tion until he filed his motion to dismiss. Finally,
regarding prejudice, the judge said that because Sykes
was “largely responsible” for most of the continuances,
any claim of prejudice was weak; the continuances, the
judge remarked, were “granted in some effort to under-
stand what to do with the case that [Sykes] has made
into a serious challenge to the Court’s ability to do justice.”
The court did not abuse its discretion in weighing these
factors. The judge accurately characterized bank robbery
as “quite serious.” See United States v. Jones, 213 F.3d
1253, 1257 (10th Cir. 2000) (characterizing armed-bank-
robbery and firearm charges as “extremely serious”). The
12 No. 08-2558
judge was entitled to consider Sykes’s outlandish
and disruptive behavior, which posed serious challenges
for the court and was in large part responsible for the
delay in bringing the case to trial. The court also cor-
rectly considered the absence of fault on the part of the
government. See Killingsworth, 507 F.3d at 1091 (“[T]he
absence of bad faith by the government and the lack of
prejudice to the defendant nudge this factor in favor of
dismissal without prejudice.”); United States v. Arango, 879
F.2d 1501, 1508 (7th Cir. 1989) (similar). And despite
Sykes’s argument to the contrary, the court was also
justified in observing that Sykes did not bring the delay
to the court’s attention as the number of nonexcludable
days accumulated. See United States v. Fountain, 840 F.2d
509, 513 (7th Cir. 1988) (“A defendant who waits pas-
sively while the time runs has less claim to dismissal
with prejudice than does a defendant who demands, but
does not receive, prompt attention.”).
There is one aspect of the district court’s ruling that
requires further discussion, however. The judge com-
mented that our opinion in Killingsworth “indicates that
unless there is good reason for dismissing with
prejudice, the dismissal should be without prejudice.”
This statement might be read to suggest that the judge
thought Killingsworth established a presumption in
favor of dismissal without prejudice for violations of
the Speedy Trial Act. Killingsworth did not articulate
such a presumption, and indeed, such a holding would
be directly contrary to the Supreme Court’s opinion in
Taylor. See Taylor, 487 U.S. at 334 (“Congress did not
intend any particular type of dismissal to serve as the
No. 08-2558 13
presumptive remedy for a Speedy Trial Act violation.”); id.
at 343 n.15 (“[W]e have expressly concluded that there is
no presumption in favor of either form of dismissal.”).
Instead, Killingsworth merely concluded that a three-
day violation of the Act did not warrant a dismissal
with prejudice for charges of possession with intent to
distribute over 500 grams of cocaine and possession of
a firearm in furtherance of a drug-trafficking crime. Here,
the record as a whole makes it clear that the judge ulti-
mately did not apply Killingsworth as if it created a pre-
sumption in favor of dismissal without prejudice; rather,
the judge thoroughly considered and weighed all of
the statutory factors, as required by the statute and con-
trolling caselaw.
Sykes claims the court was wrong to hold him responsi-
ble for much of the delay. Our review of the record con-
vinces us otherwise. Sykes repeatedly advanced frivolous
arguments and made the efficient handling of his case
extremely difficult. He also points to the length of the
delay, noting that there were 224 nonexcludable days. A
lengthy delay is one important factor for the court to
consider. But there are no bright-line rules, and a delay
of 224 nonexcludable days does not by itself require
dismissal with prejudice. See, e.g., Jones, 213 F.3d 1253
(affirming district court’s dismissal without prejudice in
case involving charges of bank robbery and weapons
possession where there were 414 nonexcludable days).
Finally, Sykes takes issue with the district court’s view
that the delay did not imperil his defense. His primary
contention on this point is that the delay allowed the
14 No. 08-2558
government to bring an additional bank-robbery count in
the superseding indictment. This argument makes little
sense. The government could have brought that charge
at any time within the statute of limitations, even if the
district court dismissed the other three counts with preju-
dice. Sykes’s last claim of prejudice is that he remained
incarcerated while awaiting trial. But this too is just one
factor for the district court to consider. Here, the court was
well aware that Sykes remained in pretrial custody and
weighed that against the fact that Sykes himself caused a
substantial amount of the delay. The district court was
well within its discretion to dismiss the charges without
prejudice.
B. Fifth Amendment Right to Meaningful Access to
the Courts
Sykes next argues that his pretrial detention in the
Kankakee prison violated his Fifth Amendment right to
meaningful access to the courts under Bounds v. Smith, 430
U.S. 817 (1977). Bounds held that the “fundamental consti-
tutional right of access to the courts requires prison
authorities to assist inmates in the preparation and filing
of meaningful legal papers by providing prisoners with
adequate law libraries or adequate assistance from
persons trained in the law.” 430 U.S. at 828. The Court
made clear, however, that “while adequate law libraries
are one constitutionally acceptable method to assure
meaningful access to the courts, our decision here . . . does
not foreclose alternative means to achieve that goal.” Id.
at 830.
No. 08-2558 15
We have long interpreted Bounds to give the govern-
ment the choice to provide either access to a law library or
access to counsel or other appropriate legal assistance.
United States ex rel. George v. Lane, 718 F.2d 226 (7th Cir.
1983); accord United States v. Byrd, 208 F.3d 592, 593-94
(7th Cir. 2000); United States v. Chapman, 954 F.2d 1352,
1362 (7th Cir. 1992); Martin v. Davies, 917 F.2d 336, 340
(7th Cir. 1990); United States v. Moya-Gomez, 860 F.2d 706,
742-43 (7th Cir. 1988); Howland v. Kilquist, 833 F.2d 639, 643
(7th Cir. 1987). We have further held that a defendant
who declines appointed counsel and instead invokes his
constitutional right to self-representation under Faretta v.
California, 422 U.S. 806 (1975), “does not have a right to
access to a law library.” Byrd, 208 F.3d at 593; accord Moya-
Gomez, 860 F.2d at 743; Lane, 718 F.2d at 227. “The rule
is that [the defendant] has the right to legal help through
appointed counsel, and when he declines that help, other
alternative rights, like access to a law library, do not
spring up.” Byrd, 208 F.3d at 593. Insofar as Sykes
contends that access to a law library is mandated under
Bounds, our caselaw squarely forecloses his claim.
Sykes maintains, however, that his right to access the
courts was violated because he could not reach his ap-
pointed standby counsel during the time he was incarcer-
ated in the Kankakee prison. This argument fails as a
matter of fact; the record does not support Sykes’s claim
that he was deprived of access to the courts. While he
was incarcerated at the Kankakee prison, Sykes filed
three separate motions to dismiss, each of which quotes
relevant legal authorities at length. Sykes admitted that
he and the other prisoners who were assisting him
16 No. 08-2558
called his claimed alibi witnesses but that the witnesses
would not answer the calls. He claimed that he called
his standby counsel “on numerous occasions” but for
some unexplained reason, the calls “would not go
through.” This five-week inability to reach stand-by
counsel is mitigated by the fact that he had access to
Korenkiewicz during the first 18 months of his incar-
ceration.
Moreover, when Sykes complained to the court about
his inability to reach either his standby counsel or his
alibi witnesses, the judge asked him whether he wanted
a continuance to allow counsel or a court-appointed
investigator to track down these witnesses. Sykes twice
answered “no,” insisting that “[t]he damage has already
happened.” Sykes left the district court with little
choice but to proceed, having expressly rejected the
only obvious cure for any possible Bounds violation.
Under the circumstances here, Sykes was not deprived
of his constitutional right to access the courts.
C. Jury Questioning
Finally, Sykes contends that the district court’s deci-
sion to allow jurors to directly question the witnesses
warrants reversal. Because Sykes did not object to this
practice at trial—indeed, because he did not even attend
his trial—we review his claim for plain error. See F ED. R.
C RIM. P. 52(b); United States v. Feinberg, 89 F.3d 333, 336 (7th
Cir. 1996). Under the plain-error standard, Sykes must
establish that the court plainly erred and that the error
affected his substantial rights. United States v. Olano, 507
No. 08-2558 17
U.S. 725, 732-35 (1993). An error is “plain” when it is
“ ‘clear’ or, equivalently, ‘obvious.’ ” Id. at 734. An error
affects substantial rights when it “affected the outcome
of the district court proceedings.” Id.; accord United States
v. Dominguez Benitez, 542 U.S. 74, 83 (2004); Feinberg,
89 F.3d at 336 (“Feinberg must show that but for the
jurors’ questions, the outcome of the trial probably
would have been different.”). Even if Sykes makes these
showings, the decision to remedy the error is discre-
tionary, and we “should not exercise that discretion
unless the error ‘seriously affect[s] the fairness, integrity
or public reputation of judicial proceedings.’ ” Olano,
507 U.S. at 732 (alteration in original) (quoting United
States v. Atkinson, 297 U.S. 157, 160 (1936)).
We first addressed the practice of juror questioning of
witnesses in United States v. Feinberg. We held there that
the district court may, in its discretion, allow jurors to
propose questions to be put to the witnesses. 89 F.3d at
337. We noted that the practice could be beneficial in
some contexts, “such as conspiracy or antitrust cases, in
which the facts are so complicated that jurors should be
allowed to ask questions in order to perform their duties
as fact-finders.” 89 F.3d at 337. We cautioned, however,
that the practice is “fraught with risks.” Id. at 336. We
therefore instructed district courts to
take prophylactic measures in an attempt to prevent
the practice from harming either party. For example,
common sense dictates that the questions should
be proffered in writing to the district court judge. By
reducing the questions to writing, a court eliminates
18 No. 08-2558
the possibility that a witness will answer a question
prematurely. Written questions also guard against
juror commentary that suggests or precipitates prema-
ture deliberation.
Id. at 337 (internal citation omitted).
We recently revisited the issue of juror questioning
in SEC v. Koenig, 557 F.3d 736 (7th Cir. 2009), and took a
far more approving view of the practice, explaining that
the American Bar Association recommended it and
recent research on juror questioning had established its
benefits. Id. at 741. In particular, we noted our own
circuit’s participation in the ABA’s American Jury
Project and observed that the “judges, the lawyers for
the winning side, and, tellingly, the lawyers for the
losing side, all concluded (by substantial margins) that
when jurors were allowed to ask questions, their atten-
tion improved, with benefits for the overall quality of
adjudication.” Id. Nevertheless, we noted the Jury
Project’s “proviso that jurors should submit their ques-
tions to the judge, who will edit them and pose appro-
priate, non-argumentative queries.” Id.
Here, however, the judge did not require jurors to
reduce their questions to writing and submit them to
the court, which would have allowed the judge to “edit
them and pose appropriate, non-argumentative que-
ries,” and otherwise filter prejudicial comments. See also
United States v. Rawlings, 522 F.3d 403, 408 (D.C. Cir. 2008)
(listing other sensible prophylactic procedures). Instead,
the court allowed—and indeed encouraged—the jurors
to interrupt the witnesses and ask questions at will. This
No. 08-2558 19
approach significantly increases the risk of prejudice. In
light of our statements in Feinberg and Koenig regarding
the need for procedural safeguards, we conclude that the
district court erred in allowing the jurors free rein to
question the witnesses.
For us to reverse, however, Sykes must establish that
jurors asked improper questions or that their questions
precipitated some other impropriety in the trial, and that
the improper questions affected the jury’s verdict. Sykes
cannot establish either. Sykes points to the juror’s question
to the judge about his absence from the courtroom and
argues that this caused the judge to cast him in a poor
light and “disparage[] . . . the merits of the defense case.”
We disagree. The court’s answer to the juror’s question
was entirely appropriate. The judge correctly explained
that Sykes was not present because he invoked his con-
stitutionally protected right of self-representation and
then chose not to attend his trial. The judge also ex-
plained that Sykes had standby counsel and had
instructed his lawyer not to attend the trial. Lest there
be any confusion about any inferences from Sykes’s
absence, the judge quickly added that the jury was not
to hold Sykes’s absence against him and that it must
determine Sykes’s guilt beyond a reasonable doubt based
only on the evidence before it. To the extent the court’s
comment cast Sykes in a poor light (and we do not think
it did), the court corrected any possible improper impres-
sion almost immediately with this remedial instruction
to the jury. See United States v. Curry, 538 F.3d 718, 728
(7th Cir. 2008) (“This court repeatedly has held that
jurors are presumed to follow limiting and curative
20 No. 08-2558
instructions unless the matter improperly before them is
so powerfully incriminating that they cannot reasonably
be expected to put it out of their minds.” (internal quota-
tion marks omitted)).
Nor can Sykes show that the jurors’ questions likely
changed the outcome of this case. See Dominguez Benitez,
542 U.S. at 83. He argues that the government might not
have sustained its burden of proving identity, but the
uncontradicted evidence is overwhelmingly against
him. Cf. United States v. Cotton, 535 U.S. 625, 632-34 (2002)
(exercising discretion not to reverse a plain error be-
cause evidence related to error was “overwhelming” and
“essentially uncontradicted”); Johnson v. United States,
520 U.S. 461 (1997) (same). Not only did the prosecution
present substantial fingerprint evidence connecting
Sykes to the robberies, but it also elicited testimony
that eyewitnesses identified Sykes from a photo array
and that Sykes and Barkalow were found in possession of
$500 in cash and a substantially similar demand note as
the ones used during the robberies. Finally, still images
from security-camera footage showed Sykes in the
banks, and the absent Sykes offered the jury absolutely
no defense that would call his guilt into question. Thus,
although the court should not have allowed jurors to
directly question the witnesses, there is no reason to
question the ultimate outcome of his trial.
A FFIRMED.
7-19-10