NONPRECEDENTIAL DISPOSITION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 February 11, 2016
Decided March 10, 2016
Before
DIANE P. WOOD, Chief Judge
RICHARD A. POSNER, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
No. 14‐1655
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 12 CR 416
CHARLES B. ESTELL,
Defendant‐Appellant. Gary Feinerman,
Judge.
O R D E R
Charles Estell was charged with armed bank robbery, 18 U.S.C. § 2113(a), (d), and
brandishing a firearm during and in relation to that crime, id. § 924(c)(1)(A)(ii). He
testified at trial that he was forced to rob the bank by men who threatened to harm his
fiancée and infant son. The jury disbelieved this defense, and the district court sentenced
him to a total of 390 months’ imprisonment. Estell has filed a notice of appeal, but his
newly appointed lawyer asserts that the appeal is frivolous and seeks to withdraw.
See Anders v. California, 386 U.S. 738, 744 (1967). Estell opposes counsel’s motion.
See CIR. R. 51(b). Counsel’s brief in support of her motion explains the nature of the case
and addresses issues that an appeal of this kind might be expected to involve. Because
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the analysis in the brief appears to be thorough, we limit our review to the subjects
counsel discusses plus the additional contentions in Estell’s response. See United States v.
Bey, 748 F.3d 774, 776 (7th Cir. 2014).
After closing time on June 2, 2012, Estell dropped through the ceiling of the vault
at a Bank of America branch in Oak Lawn, Illinois. He pointed a handgun at the two
employees in the vault and forced them to the floor before binding their hands and
ankles and placing duct‐tape over their mouths. Estell was calm, the two employees told
the jury, and said he just wanted to take the bank’s money without hurting them. He
escaped through the ceiling with about $230,500 but triggered a silent alarm on the way
out. The police arrived in time to see Estell on the roof breaking through a window of the
adjacent building, where he managed to evade capture for 10 hours.
The next day investigators surmised that Estell had entered the bank through a
hole created by removing a rooftop vent. On the roof they also found the bank’s money,
a loaded handgun, and keys to a GM vehicle. With keys in hand the investigators
walked the nearby streets pressing the key fob until they heard a sound emitted from a
Cadillac Escalade parked a block from the bank. The investigators unlocked the
Escalade, performed a safety search, and then searched it again after towing the vehicle
and obtaining a warrant. They found Estell’s identification, a saw, and a sales receipt
dated two months earlier for a small camera mounted on a flexible cable. Also inside
were notes, in Estell’s handwriting, describing the bank’s employees and their cars and
detailing their work hours. A cellphone found in his pocket had photos of the bank’s
interior, and the phone’s web browser history showed searches for the model of vault at
that branch.
Estell testified that four unknown men broke into his home three days before the
robbery and demanded money. They beat him until he lost consciousness, he said, and
when he awoke in an unfamiliar location, the assailants beat him again and threatened to
kill him. (A medical exam after his arrest, though, showed only a few small cuts on his
forearms.) The kidnappers forced him to perform the Internet searches on his phone
before driving him to the bank in his Escalade with his head covered and taking him
onto the roof, where the hole already was cut. He was given duct tape, zip ties, and the
gun and told that he and his family would die if he didn’t rob the bank.
This was not the story he told after his arrest. Before the gun and keys were
found, Estell had offered to cooperate and told an FBI agent that he took a bus to the
bank and entered with an unloaded gun, which he discarded (along with the money) in
No. 14‐1655 Page 3
a yard behind the bank. He said that he robbed the bank with help from an employee
because he was jobless and destitute. Two weeks later Estell told a different FBI agent
that he owed $200,000 to a drug dealer who was threatening him and his family.
It wasn’t until six months after the robbery, though, that Estell’s story about being
kidnapped first materialized. In a three‐way call initiated from jail using his fiancée as
intermediary (a call that the facility recorded), Estell discussed the purported
kidnapping and robbery with an unidentified man, who said during the call that they
“wouldn’t be having these mother‐fucking problems” if Estell had “went on and robbed
that mother‐fucking bank like I told you punk ass.” The man threatened to “finish the
job” of killing Estell. Afterward the jail intercepted a letter to Estell containing a photo of
a man with his head covered. Estell was interviewed again and said that the man on the
phone was one of the four assailants. His previous stories, Estell told the FBI, had been
lies.
The investigation and Estell’s changing stories prompted three evidentiary
rulings that are relevant here. First, the court refused to suppress the items found in
Estell’s vehicle. Next, at the government’s request, the court prohibited Estell from
arguing about the adequacy of the robbery investigation. And, third, the court excluded
as hearsay portions of the recorded phone conversation in which the purported
kidnapper recounts the alleged abduction and robbery plot.
Once found guilty, Estell demanded that his appointed lawyer be discharged, and
after a hearing, see Faretta v. California, 422 U.S. 806, 835 (1975), he was allowed to
represent himself. He moved for a new trial claiming ineffective assistance of counsel,
but the district court denied that motion without prejudice, saying it was best saved for a
postconviction proceeding under 28 U.S.C. § 2255. Estell also moved to dismiss the
indictment. He argued, first, that prosecutors had engaged in misconduct before the
grand jury by allowing an FBI agent to testify that he didn’t know how long it had taken
to penetrate the bank’s roof, by not presenting evidence supposedly favorable to Estell’s
coercion defense, and by misreporting the gun’s serial number. Estell further argued that
prosecutors had violated Brady v. Maryland, 373 U.S. 83 (1963), by withholding the
agent’s testimony about the time needed to cut through the roof. The district court gave
several reasons for rejecting these contentions, including that the jury’s verdicts
rendered harmless the claim of grand jury abuse and that the agent’s testimony about
the hole in the roof wasn’t exculpatory.
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The district court found Estell to be a career offender, see U.S.S.G. § 4B1.1, based
on a 1994 federal conviction for conspiracy to distribute crack cocaine (for which he was
incarcerated through 2003), a 2007 conviction in Illinois for carjacking, and a 2008
conviction in California for possessing marijuana for sale. The court calculated a
guidelines imprisonment range of 360 months to life and imposed a total of 390 months.
The court also imposed 5 years of supervised release, with two special conditions. The
court didn’t explain why those conditions were necessary, and neither did the court
orally pronounce all of the standard conditions included in the written judgment.
In her Anders submission counsel evaluates, but correctly rejects as frivolous, a
possible challenge to the sufficiency of the evidence. See 18 U.S.C. §§ 2113(a), (d);
924(c)(1)(A)(ii); United States v. Simmons, 581 F.3d 582, 586 (7th Cir. 2009) (discussing
elements of § 2113(d)); United States v. Sandoval, 347 F.3d 627, 633 (7th Cir. 2003)
(discussing elements of § 924(c)(1)). Estell never moved for a judgment of acquittal,
see FED. R. CRIM. P. 29, so his convictions must stand absent a showing of a manifest
miscarriage of justice. See United States v. Clark, 787 F.3d 451, 459–60 (7th Cir. 2015).
That’s inconceivable; Estell was seen entering, and found hiding in, the building next
door to the bank, which, along with the employees’ testimony, the bank’s surveillance
videos, and the physical evidence found on the bank’s roof and in the defendant’s
vehicle, provided overwhelming evidence of guilt. Moreover, the issue for the jury was
not if, but why, Estell robbed the bank, and the jurors were entitled to disbelieve his
coercion defense. That defense, which rested on Estell’s testimony, is impossible to
reconcile with the photos from his phone showing that he had cased the bank and the
notes from his car reflecting meticulous preparation.
Counsel also asserts that Estell does not have a nonfrivolous claim concerning the
denial of his posttrial motion to dismiss the indictment. We agree. Putting aside that
Estell’s allegation of perjury by the FBI agent has no support in the record, the district
court was correct that claims of grand jury abuse become moot if a petit jury finds the
defendant guilty. See United States v. Mechanik, 475 U.S. 66, 72–73 (1986); United States v.
Philpot, 733 F.3d 734, 741–42 (7th Cir. 2013).
Also frivolous, says appellate counsel, would be a challenge to the denial of
Estell’s motion to suppress. Investigators had found GM keys on the bank’s roof near the
loot and a handgun, and they had probable cause to search whatever vehicle those keys
matched. See United States v. Foxworth, 8 F.3d 540, 542, 545 (7th Cir. 1993); United States v.
Rivera, 825 F.2d 152, 158 (7th Cir. 1987).
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And, finally, concerning the trial, appellate counsel correctly declines to pursue a
Brady claim proposed by Estell, who protests that the government waited until two
weeks before trial to disclose an assortment of information. Yet even if Brady compelled
the release of any of this information, that opinion simply requires that disclosures be
made sufficiently in advance for effective use of the information by the defendant.
See United States v. Mota, 685 F.3d 644, 649 (7th Cir. 2012); United States v. Gray,
648 F.3d 562, 567 (7th Cir. 2011). And counsel adds, correctly, that the government was
not obligated to produce the FBI agent’s grand jury testimony because he did not testify
at trial. See 18 U.S.C. § 3500(b); United States v. Withers, 972 F.2d 837, 845 n.9
(7th Cir. 1992).
In his Rule 51(b) response, Estell further suggests that the district court erred by
preventing him from arguing that the government’s investigation of the robbery was
deficient, and by excluding from evidence portions of the telephone call recorded by the
jail. But trial judges have discretion to limit argument on tangential issues that could
confuse the jury, and that includes a defendant’s complaints about the adequacy of the
government’s investigation. See United States v. Robbins, 197 F.3d 829, 845 (7th Cir. 1999);
United States v. Patrick, 248 F.3d 11, 21–23 (1st Cir. 2001). Establishing Estell’s coercion
defense was his responsibility, not the government’s. See Dixon v. United States,
548 U.S. 1, 15 (2006); United States v. Lewis, 641 F.3d 773, 782 (7th Cir. 2011); United States
v. Rovetuso, 768 F.2d 809, 818 (7th Cir. 1985).
Moreover, a contention that the district court was required to permit the entire
telephone conversation to be played for the jury would be frivolous. Estell purportedly
had returned a call from one of the unknown kidnappers at a number given his fiancée.
But he never plausibly explained how it would not be a hearsay use to prove through the
recording what the other man said about the purported kidnapping. See FED. R.
EVID. 801(c), 802; Lewis, 641 F.3d at 782, 784–85. Even so, the court did allow Estell to play
those parts of the call where he was threatened. And the court also permitted Estell to
recount everything the other man had said during the call, and that hearsay offered
through Estell is the same hearsay that he wanted to offer through the recording.
Concerning the trial, Estell concludes with several frivolous claims of
prosecutorial misconduct. He insists that the government referred to facts not in
evidence by mentioning the receipt found in his car as well as by stating that he had
“assaulted” the bank’s two employees. Prosecutors may not misstate the evidence,
see United States v. Haldar, 751 F.3d 450, 459–60 (7th Cir. 2014); United States v. Klebig,
600 F.3d 700, 718 (7th Cir. 2009), but that did not happen here. The receipt was for a
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small camera mounted on a flexible cable, and an investigator testified about how that
camera could have been used to see into inaccessible areas like air vents. And the two
employees testified that Estell had pointed his gun at their heads, which fully justified
the government in asserting that they had been “assaulted.” See United States v. Jones,
188 F.3d 773, 778–79 (7th Cir. 1999).
That leaves Estell’s sentencing. Counsel first questions whether to claim that it
was error to allow Estell to represent himself at sentencing. That contention would be
frivolous because the district court ensured that Estell’s choice to proceed without
counsel was knowing and intelligent. See United States v. Cooper, 591 F.3d 582, 587
(7th Cir. 2010); United States v. Johnson, 534 F.3d 690, 693–94 (7th Cir. 2008). The court
conducted a formal hearing, cautioned Estell about the risks of self‐representation, and
inquired into his background and mental health. Estell said unequivocally that he was
experienced and knowledgeable about criminal proceedings, and that he wanted to
represent himself.
Counsel also rejects challenging the application of the career offender guideline,
U.S.S.G. § 4B1.1, and the denial of a downward adjustment for acceptance of
responsibility, id. § 3E1.1. Estell surely wasn’t entitled to the latter discount after going to
trial and presenting a defense that the jury rejected as phony. See id. § 3E1.1(a), cmt.
nn.1–2; United States v. DeLeon, 603 F.3d 397, 407–08 (7th Cir. 2010); United States v.
Hendricks, 319 F.3d 993, 1009 (7th Cir. 2003). And Estell’s prior felony convictions, two
for controlled substance offenses and a third for carjacking, made him a career offender.
At sentencing the defendant did not dispute that “vehicular hijacking” as defined by
Illinois law is a crime of violence. See 720 ILCS 5/18‐3 (2007) (defining as a statutory
element the use, or threat of imminent use, of force). And although he did argue that age
disqualified his 1994 drug conviction, see 21 U.S.C. § 841(a)(1), he was incarcerated
through 2003—within the qualifying 15‐year period. See U.S.S.G. § 4A1.2. Estell’s other
drug conviction, from 2008, did not even have to be considered.
An appellate claim challenging the reasonableness of Estell’s total imprisonment
of 390 months likewise would be frivolous. That total includes a 90‐month consecutive
term for the firearm offense, which, as counsel notes, does not raise any concern under
the Double Jeopardy Clause because Congress intended consecutive sentences.
See United States v. Gonzales, 520 U.S. 1, 9–10 (1997); United States v. Harris, 832 F.2d 88,
90–91 (7th Cir. 1987). Moreover, 390 months is within the guidelines range and thus
presumptively reasonable, see Rita v. United States, 551 U.S. 338, 347 (2007), and counsel
has not identified anything in the record rebutting that presumption. The district court
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considered in depth the factors in 18 U.S.C. § 3553(a), including the seriousness of
Estell’s meticulously planned and violent offenses and the need to incapacitate him,
even when he is released from prison as an old man. The court explained that the
possible de facto life sentence was justified by the danger Estell poses to the community.
The court further took into account Estell’s difficult childhood and the support he
provided to his family and child, but balanced these mitigating factors against Estell’s
long criminal history.
Finally, although counsel did identify a meritorious challenge to the conditions of
Estell’s supervised release, he directed her to not pursue that challenge. See United States
v. Bryant, 754 F.3d 443, 447 (7th Cir. 2014).
Counsel’s motion to withdraw is GRANTED, and the appeal is DISMISSED.