United States v. Foster

In the

United States Court of Appeals
For the Seventh Circuit

No. 10-3198

U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.

N APOLEON F OSTER,
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.

A RGUED A PRIL 7, 2011—D ECIDED JULY 21, 2011

Before C UDAHY, M ANION, and H AMILTON, Circuit Judges.
H AMILTON, Circuit Judge. Appellant Napoleon Foster
was found guilty of orchestrating an armed robbery of a
credit union and related firearms charges. He was sen-
tenced 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 Pro-
cedure 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 con-
tends 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 en-
forcement 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 em-
ployees 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 him-
self. 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 pro-
vide. 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 ap-
proximately $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 testi-
mony, 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 exer-
cised 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 per-
emptory 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 chal-
lenges 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 chal-
lenges on those jurors with the highest seating priorities
and whose impartiality he doubted.
The text of Rule 24 provides for questioning of prospec-
tive jurors and for the exercise of peremptory chal-
lenges. 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 sup-
porters and detractors. Over the past generation, how-
ever, 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 chal-
lenge. How likely is it that a particular juror will be
selected if not struck, or is that likelihood simply un-
known? If that particular juror is struck, what is known
about the likely replacement — is that possible replace-
ment 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 out-
comes). 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 dis-
cretion 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 proce-
dures. As the Supreme Court has explained, the provi-
sions 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

(finding defendant waived objection to same Rule 24(c)
violation in selection of alternate jurors). In an on-the-
record 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.1 Foster did not raise his
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 pro-
ceeding 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 what-
ever steps are necessary to ensure that any such waivers
are valid.

1
Contrary to Foster’s insistence on appeal, nothing in the
record indicates that his defense counsel was confused or
misinformed.
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 check-
cashing 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 permis-
sion 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 objec-
tion, 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 examina-
tion, Hill explained that she had first met Foster when
he recruited her to assist him in a fraudulent check-
cashing 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 Decem-
ber 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 re-
cruited 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 evi-
dence 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 pre-
Gorman 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

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.2 The evidence helped
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). 3 Foster cites cases in which we have held
prior bad acts inadmissible because they bore too little

2
To the extent Foster tries to argue that this purpose is not
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).
3
Foster does not argue that his prior acts were not close
enough in time to be admissible under Rule 404(b).
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 subse-
quent 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, similar-
ity means more than sharing some common charac-
teristics; 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 sig-
nificance. 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 dif-
ferences 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 sub-
stantial in relation to the evidence’s probative value.”
Tanner, 628 F.3d at 902. “[T]he more probative the evi-
dence, the more the court will tolerate some risk of preju-
dice, 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 check-
cashing 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 govern-
ment 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 ac-
complices, 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 check-
cashing 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-con-
stitutional 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 testi-
mony 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 admit-
ted 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

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 re-
cording for the jury. Foster argues that the recording
and transcript were inadmissible hearsay and that their
admission violated his Sixth Amendment right to con-
frontation 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-exam-
ination. 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

4
Because we find no error on these issues, we decline to
resolve the parties’ dispute over whether plain error review is
appropriate here. See Tanner, 628 F.3d at 901 n.2.
No. 10-3198 19

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 wit-
ness’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 consis-
tent statement was not hearsay under Rule 801(d)(1)(B),
and the district court did not err.5

5
We do not consider Foster’s additional arguments con-
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...)
20 No. 10-3198

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 identi-
fied 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 Olds-
mobile 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 pur-
chased 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

5
(...continued)
(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).
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 dis-
trict 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 state-
ment from the definition of hearsay if the declarant
“testifies at trial . . . subject to cross-examination con-
cerning the statement and the statement is . . . (C) one
of identification of a person made after perceiving the
person. . . .” Under this rule, Kotlajich’s out-of-
court identification of Foster was admissible non-
hearsay so long as Kotlajich testified at trial and was
subject to cross-examination concerning that identifica-
tion. The Third Circuit has explained:
Debate on the 1975 amendment to [Rule 801(d)] dem-
onstrates [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 identifica-
tion of defendant after witness recanted at trial).
The better course, obviously, is to provide the photo
array or other evidence of the prior identification im-
mediately, 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 require-
ments 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 testi-
mony regarding witness’s prior identification was ad-
missible 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 pre-
sented 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 evi-
dence 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 confer-
ence 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 case-
in-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 state-
ments made during closing arguments may not be con-
sidered 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 rea-
sonable doubt that the victim financial institution falls
within the coverage of the law. If the victim is a state-
chartered 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 govern-
ment presented the testimony of Acme’s vice presi-
dent/comptroller, who identified two government ex-
hibits as insurance certificates showing that Acme was
insured by the NCUA. According to the vice presi-
dent, Acme had been insured by the NCUA since Novem-
ber 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 examina-
tion, 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 govern-
ment’s burden. See Taylor, 728 F.2d at 933 (finding suffi-
cient bank vice president’s testimony that “clearly indi-
cated 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 testi-
mony “was uncontroverted by any evidence offered by
the defendant.” Taylor, 728 F.2d at 933 (rejecting defen-
dant’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 unlaw-
ful 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 convic-
tion 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 fire-
arms.” 18 U.S.C. § 921(a)(20).
After his conviction, Foster moved to dismiss the in-
dictment and to vacate the guilty verdict, claiming that
he “recalls a letter being sent to his mother’s house fol-
lowing 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 al-
legations, 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 evi-
dence, 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 stipula-
tion 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 con-
viction under section 922(g)(1) does not require the gov-
ernment 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 defen-
dant’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 indict-
ment 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), ex-
cept 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 convic-
tion was “voidable” and “should not be counted” as a
predicate felony under section 924(e).
This argument is a non-starter. Unless the prior convic-
tion used to enhance a defendant’s sentence under sec-
tion 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 representa-
tion,” 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 inef-
fective 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 ap-
peal.” 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 convic-
tions 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 pur-
poses 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 sen-
tencing, 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 A FFIRMED.

7-21-11