NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted June 23, 2010
Decided June 24, 2010
Before
JOHN L. COFFEY, Circuit Judge
JOEL M. FLAUM, Circuit Judge
DANIEL A. MANION, Circuit Judge
No. 07‐3865
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 05‐CR‐1025‐1
WALTER SLOAN,
Defendant‐Appellant. Ronald A. Guzmán,
Judge.
O R D E R
A jury found Walter Sloan guilty of bank robbery, 18 U.S.C. § 2113(a), and the
district court sentenced him to 100 months’ imprisonment. Sloan appeals, but his
appointed counsel moves to withdraw because he cannot identify any nonfrivolous
argument to pursue. See Anders v. California, 386 U.S. 738 (1967). Sloan has not
responded to our invitation to comment on counsel’s submission, see CIR. R. 51(b), so we
limit our review to the potential arguments identified in counsel’s facially adequate
brief. See United States v. Schuh, 289 F.3d 968, 973‐74 (7th Cir. 2002).
No. 07‐3865 Page 2
On December 16, 2005, a man approached a teller at a TCF Bank branch in a
Jewel/Osco supermarket in Hickory Hills, Illinois, and demanded the money in the
teller’s drawer. The man threatened the teller, Saif Yasin, and displayed from his
waistband what the teller believed to be the handle of handgun. Yasin gave the robber
money from his cash drawer. After the robber fled, the bank supervisor called 911,
describing the robber as a six‐foot tall white male wearing a red and black farmer’s
button‐up. The teller also said the man smelled of alcohol.
The first officer, Detective Joseph Roscetti, testified at Sloan’s trial that he quickly
arrived at the scene and was pointed by two witnesses in the direction of an alley
behind the strip mall. He soon saw a man, later identified as Sloan, fleeing down the
alley. Another officer cut Sloan off from the opposite end of the alley. Sloan initially
refused to take his hands out of his pockets and was forcibly subdued, sustaining
injuries to his face. He had no wallet, money, or identification with him, but a search of
the area near the northwest corner of the alley revealed a blue and gray plaid jacket
with two white work gloves in the pockets and an air pistol. Officers also found $678 in
currency behind a storage container in the alley. DNA samples recovered from the blue
jacket were later tested and matched Sloan’s DNA. No usable prints were found on the
weapon and none of the usable prints found on the money matched Sloan’s.
Because Sloan sustained injuries during his arrest, an ambulance was called to
the scene. Officers at the scene brought Yasin to the ambulance to conduct a “show‐up
identification.” Officers positioned Yasin where he could see Sloan through the
window of the ambulance, and he positively identified Sloan as the robber. Sloan was
later indicted for bank robbery.
At trial a key dispute arose over why Sloan’s DNA was found on the blue jacket.
Sloan contended that the jacket, which was found with the air pistol, was not his and
that any trace of his DNA on the jacket resulted from the officers’ forcing the jacket
upon him for the show‐up identification. The officers involved all denied doing this.
Sloan’s alibi was that he was at the Jewel that day to buy a beer and to search the
dumpsters in the alley for scrap materials.
In rebuttal, the government introduced a recording of a telephone conversation
between Sloan and Lisa Garner, his long‐time girlfriend, to impeach Sloan’s testimony
that the blue coat found with the weapon at the scene was not his. The officers and FBI
agent who transferred Sloan to the Metropolitan Correctional Center (“MCC”) testified
at trial that they inadvertently left the red and black farmer’s button‐up Sloan was
No. 07‐3865 Page 3
wearing on the night of the robbery in the bag transferring his personal possessions to
the MCC. Sloan requested that his personal possessions be sent home and then a few
days later called Garner to instruct her to dispose of the jacket. This conversation was
recorded as a matter of course and the portion introduced supported the government’s
contention that Sloan had directed Garner to dispose of the red jacket and that both
Garner and Sloan understood him to possess both red and blue coats on the night of the
robbery.
After brief deliberation, the jury convicted Sloan.
Counsel first considers whether Sloan could challenge the sufficiency of the
indictment against him. An indictment is sufficient if it: (1) correctly states the elements
of the offense, (2) provides the defendant fair notice of the charges against him, and (3)
permits the defendant to plead the judgment on the offense as a bar to future
prosecution. See United States v. Singleton, 588 F.3d 497, 499‐500 (7th Cir. 2009); United
States v. Dooley, 578 F.3d 582, 589‐90 (7th Cir. 2009). There is no question that the
indictment here was proper: it correctly listed the elements of § 2113(a), the statute
under which Sloan was charged, and included the time and place of the robbery
alleged, giving Sloan ample notice of the charges against him.
Counsel also considers whether Sloan could argue that the government failed to
comply with its obligations under Brady v. Maryland, 373 U.S. 83 (1963), to turn over all
evidence or information that impeached its planned witnesses. According to counsel,
Sloan believes that the government withheld additional tape evidence. But counsel
admits that he knows of no basis for this assertion and that the nature or contents of any
alleged undisclosed tapes are not known to either Sloan or counsel. Any argument
based on a bare allegation of a Brady violation, without a clear statement of what was
withheld or how it prejudiced Sloan, would be frivolous. See United States v. Jumah, 599
F.3d 799, 809 (7th Cir. 2010); United States v. Driver, 798 F.2d 248, 251 (7th Cir. 1986).
Counsel next considers whether Sloan could challenge aspects of his trial, such as
the government’s opening and closing remarks. When reviewing such matters, we
would first determine whether the remarks in question were improper, see United States
v. Clark, 535 F.3d 571, 580 (7th Cir. 2008); United States v. Corley, 519 F.3d 716, 727 (7th
Cir. 2008), and if they were we would consider whether they prejudiced the defendant.
See Clark, 535 F.3d at 580; Corley, 519 F.3d at 727. But counsel can identify no incendiary
or improper remarks; any argument that the remarks were improper would be
frivolous.
No. 07‐3865 Page 4
Counsel then considers whether Sloan could challenge the district court’s
inclusion of two supplemental jury instructions—one admonishing jurors not to
speculate why others mentioned at trial were not also being prosecuted and another
admonishing jurors not to speculate as to the punishment Sloan would receive if
convicted. Counsel correctly notes that because neither instruction mischaracterizes the
law, any argument against their inclusion would be frivolous. See United States v. Ye,
588 F.3d 411, 414 (7th Cir. 2009); United States v. Thornton, 539 F.3d 741, 745 (7th Cir.
2008).
Turning to post‐trial motions, counsel next considers whether Sloan could
challenge the district court’s denial of his pro se motion arguing several evidentiary
issues. But Sloan was still represented by trial counsel when he filed the pro se motion,
and under such circumstances the denial of that motion was well within the wide
discretion afforded district courts. See United States v. Patterson, 576 F.3d 431, 436‐37
(7th Cir. 2009); United States v. Gwiazdzinski, 141 F.3d 784, 787 (7th Cir. 1998).
Next counsel considers whether Sloan could argue that the government
presented insufficient evidence to convict him. When reviewing such an argument, we
would evaluate the conviction viewing the evidence in the light most favorable to the
government, and reverse only if no rational jury could have found the defendant guilty
beyond a reasonable doubt. Ye, 588 F.3d at 417. Such an argument, we have noted,
presents defendants a “nearly insurmountable hurdle.” See United States v. Morris, 576
F.3d 661, 665‐66 (7th Cir. 2009) (quotation marks and citations omitted).
Ample evidence connected Sloan to the crime. Sloan was apprehended near the
crime scene within minutes of the robbery and, with minor differences, matched the
description of the robber given by the victim teller and shown on video surveillance.
The blue jacket, which was found with the air pistol and gloves, was later determined to
contain Sloan’s DNA. And the MCC telephone recording supported the government’s
theory both that Sloan sought to destroy the jacket he was wearing the night of the
robbery and that he had worn a blue coat the night of the robbery. The amount of
money recovered, just a little further down the alley, was roughly consistent with the
amount of money taken from the teller’s drawer ($678 was found and $707 was
reported missing). And while the robber was described to the 911 operator as wearing
a black and red coat, the bank video, though grainy, supported the conclusion that the
robber was wearing the blue and gray coat at the time of the robbery, lending credibility
to the government’s contention that Sloan wore the jacket during the robbery and later
discarded it along with the air pistol. A reasonable jury might well have disbelieved
No. 07‐3865 Page 5
Sloan’s version of events, and so any challenge to the sufficiency of the evidence against
him would be frivolous.
Counsel also considers whether Sloan could argue that the district court erred by
admitting into evidence portions–but not all–of the telephone conversations between
Sloan and his girlfriend. Trial counsel argued in his motion for a new trial that the
admission of selected portions of these conversations violated the doctrine of
completeness as expressed in FED. R. EVID. 106. But in order to prevail on such an
argument, Sloan would have to show both that the additional evidence was relevant
and that it would clarify the evidence presented by the government, see United States v.
Price, 516 F.3d 597, 605‐06 (7th Cir. 2009); United States v. Glover, 101 F.3d 1183, 1190 (7th
Cir. 1996); he cannot. As counsel points out, the motion for a new trial presented no
reasons why the remaining portions of the recordings were relevant beyond the vague
assertion that they would have contextualized the conversations. Thus, any argument
regarding the admission of partial recordings would be frivolous.
Counsel next turns to Sloan’s sentencing and first considers whether Sloan could
challenge the district court’s calculation of his offense level. Specifically, counsel
considers whether Sloan could challenge the two‐level increase he received for
obstruction of justice, see U.S.S.G. § 3C1.1, because Sloan instructed Garner to destroy
the jacket that he wore the night of the robbery (and which had been inadvertently
returned to him by mail while he was held at the the MCC). But counsel rightly decides
that such an argument would fail. See U.S.S.G. § 3C1.1, App. Note 4(d) (noting that
“destroying or concealing or directing or procuring another person to destroy or
conceal evidence that is material to an official investigation or judicial proceeding” is an
example of obstructive conduct); United States v. White, 406 F.3d 827, 834 (7th Cir. 2005).
Sloan did not deny that he instructed Garner to destroy the jacket; he merely stated that
it was his right to destroy his own property. But that is irrelevant to whether the jacket
was material to the investigation; it was. Any argument otherwise would be frivolous.
Counsel similarly considers whether Sloan could challenge the district court’s
calculation of his criminal history, but again any such challenge would be frivolous.
The majority of Sloan’s objections to various criminal history points were made without
support and, though he objected to some of the prior offenses listed in his presentence
report, none would have resulted in his receiving fewer criminal history points. See
U.S.S.G. § 4A1.1(c) (permitting a maximum of 4 criminal history points for prior
sentences not counted under U.S.S.G. § 4A1.1(a), (b)).
No. 07‐3865 Page 6
Counsel then examines whether Sloan could challenge his sentence as
unreasonable. But we would presume Sloan’s 100‐month imprisonment term–the
bottom of the guidelines range of 100 to 125 months–to be reasonable, see United States
v. Welton, 583 F.3d 494, 496 (7th Cir. 2009); United States v. Noel, 581 F.3d 490, 500 (7th
Cir. 2009), and counsel has identified nothing to rebut this presumption.
Finally, counsel considers several potential arguments about the ineffective
assistance of trial counsel. Counsel correctly notes, however, that Sloan should save
such claims for collateral review, where a complete record can be developed. See United
States v. Recendiz, 557 F.3d 511, 531‐32 (7th Cir. 2009); United States v. Harris, 394 F.3d
543, 557‐58 (7th Cir. 2005).
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal.