In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15‐1309
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
DONALD C. RIDLEY,
Defendant‐Appellant.
____________________
Appeal from the United States District Court for the
Southern District of Illinois.
No. 3:13‐CR‐30084‐DRH‐002 — David R. Herndon, Judge.
____________________
ARGUED DECEMBER 9, 2015 — DECIDED JUNE 13, 2016
____________________
Before EASTERBROOK and HAMILTON, Circuit Judges, and
PALLMEYER, District Judge.
HAMILTON, Circuit Judge. A jury found appellant Donald
Ridley guilty on several felony charges for participating in a
bank robbery. On appeal he challenges his convictions on
three separate grounds: the sufficiency of the evidence that he
The Honorable Rebecca R. Pallmeyer of the Northern District of Illi‐
nois, sitting by designation.
2 No. 15‐1309
brandished a firearm during the robbery; admission of an FBI
agent’s lay testimony regarding cell phone tracking infor‐
mation; and the district court’s supplemental instruction to ju‐
rors when they said they were at an impasse. We affirm.
I. The Bank Robbery
On the morning of May 7, 2008, two men staged an armed
robbery of the Farmers & Merchants Bank in Hoyleton, Illi‐
nois. The robbers entered the bank dressed all in black, wear‐
ing ski masks, and carrying guns. One robber held employees
and customers at gunpoint while the other went to the bank’s
vault and took about $115,000 in cash.
A key witness to the robbery was Cathy Michelle Livesay,
who had arrived at the bank on May 7 for just her third day
of work as a teller. She testified that each robber carried a
black handgun resembling a 9‐millimeter pistol. Livesay also
caught a glimpse of the getaway vehicle, a “bluish purple
Ford.” Once the robbers had driven off, she called her hus‐
band and told him of the robbery, the getaway car, and the
direction the suspects were headed. Her husband was able to
place himself along the getaway route and saw a Ford Ranger
matching the description his wife had given him and driving
at high speed. He noted the license plate number as the sus‐
pects sped past. He lost track of the Ranger as it drove on
Route 127 headed in the direction of Liberty School Road.
Earlier that day, at 3:30 a.m., a Liberty School Road resi‐
dent named Dennis Windler had awoken and looked out his
bedroom window. To his surprise, he noticed a truck and a car
driving slowly in tandem down Liberty School Road. He tes‐
tified that the truck was a blue pick‐up and that the car was a
light color and damaged along its side. He returned to bed.
No. 15‐1309 3
Later that morning, he was tending to his farming and saw
that the same truck he had seen earlier was now parked in a
nearby field. He investigated with his neighbor, Dennis Witte,
and discovered the truck was empty and had no license
plates.
An hour or two later, Windler returned to discover the
truck was gone but the same car—which Windler described
as painted white—was now parked in the same location.
Along with Witte, Windler noted the license plate number of
the car and returned home. A short time after that, Windler
returned to find the blue truck back in the field, and he heard
police sirens in the distance heading for Hoyleton. He also
saw the damaged white car from earlier, but this time it was
occupied. Windler tried to stop the car, but it sped past him.
He then inspected the truck. The doors were flung open and
the interior was covered in pink dye. Windler immediately
understood what had happened: “Uh‐oh. Bank robbery.” A dye
pack in the stolen cash had exploded in the truck. Windler and
Witte called the police.
The FBI quickly learned the truck had been stolen from a
dealer in Belleville, Illinois, near the home of Donald Ridley’s
grandmother. The white car’s license plate was registered to
Ridley. DNA evidence gathered from the truck matched Rid‐
ley. Officers located and spoke to Ridley, who denied involve‐
ment and claimed he had spent the day with his cousin Terry
Smith. When officers talked with Smith about his story, he ad‐
mitted that Ridley had asked him to cover for him. Smith also
revealed that he had spent the evening of May 6 with Ridley
and an acquaintance named Joe Johnson.
4 No. 15‐1309
Faced with mounting evidence, Johnson turned on Ridley
and admitted that they were the Hoyleton robbers. He re‐
vealed details of the scheme: on the morning of the robbery,
he and Ridley each brought gloves, a change of clothes, and
something to obscure their faces. They planned vehicle swaps
consistent with Livesay’s and Windler’s observations. John‐
son also said that during the robbery, he held customers and
employees at gunpoint while Ridley entered the bank vault to
steal the money.
Just before the fifth anniversary of the robbery, a federal
grand jury indicted Ridley for armed bank robbery and re‐
lated charges. The case proceeded to trial, and the jury found
Ridley guilty of armed bank robbery, brandishing a firearm in
relation to a crime of violence, making false statements to a
federal law enforcement officer, and obstruction of justice.
Ridley was sentenced to 246 months in prison and five years
of supervised release and was ordered to pay $115,000 in res‐
titution.
II. Evidence of Brandishing
On appeal, Ridley contends first that the evidence was not
sufficient to convict him for brandishing a firearm in relation
to a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A).
In reviewing a challenge to the sufficiency of the evidence
supporting a criminal conviction, we ask “whether, after
viewing the evidence in the light most favorable to the prose‐
cution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” Jackson v.
Virginia, 443 U.S. 307, 319 (1979); see also United States v. John‐
son, 592 F.3d 749, 754 (7th Cir. 2010) (in reviewing sufficiency
challenge, “we view all evidence and draw all reasonable in‐
ferences in the light most favorable to the prosecution”).
No. 15‐1309 5
The jury heard conflicting testimony about whether Rid‐
ley carried and displayed a firearm during the bank robbery.
As noted, teller Livesay testified that both robbers carried fire‐
arms where she could see them. A bank customer, Kimberly
Connelly, described the robbers and also testified that each
carried a firearm, one of which appeared to be a heavy, black
pistol. Ridley’s partner Johnson, however, testified that Ridley
had not possessed or brandished a firearm during the rob‐
bery.
Ridley argues that Johnson’s “unequivocal” testimony that
Ridley did not have a firearm undermines the conviction for
possession and brandishing. Because the government did not
challenge Johnson’s truthfulness as a witness and used some
of his statements to its advantage, Ridley argues, the govern‐
ment implicitly endorsed all of Johnson’s testimony and is
stuck with his assertion that Ridley did not carry a gun. Rid‐
ley contends that the conflicting testimony as to whether he
carried and brandished a firearm must therefore be resolved
entirely in Johnson’s and thus Ridley’s favor.
We disagree. The government is not necessarily stuck, as a
matter of law, with every detail of a cooperating witness’s tes‐
timony. Under the general standard of Jackson v. Virginia, the
jury could reasonably decide to credit Livesay’s and Con‐
nelly’s testimony that both robbers carried and displayed fire‐
arms. Their testimony on that point is legally sufficient to con‐
vict Ridley on the brandishing charge. Where plausible (i.e.,
not impossible) witness testimony conflicts, it is the jury’s role
to resolve those conflicts. E.g., United States v. Hodges, 315 F.3d
794, 799 (7th Cir. 2003), citing United States v. Hach, 162 F.3d
937, 942 (7th Cir. 1998). The jury had sufficient grounds to
credit the testimony of the teller and customer over the word
6 No. 15‐1309
of Ridley’s partner in crime and to find that Ridley actually
possessed and brandished a firearm during the robbery.
III. Cell Phone Location Testimony
Ridley also argues that he is entitled to a new trial because
the district judge allowed a non‐expert FBI agent to testify
about a map showing the locations of Ridley’s and Johnson’s
cell phones the day before and day of the robbery. The defense
did not object to the testimony at trial, however. We find no
plain error.
As part of the investigation, the FBI obtained the cell
phone records for Ridley and Johnson. The records showed
that Ridley’s phone was in southern Illinois near Hoyleton in
the early hours of May 7. Johnson’s phone records showed a
similar pattern. Ridley and Johnson had also called each other
several times on May 6 and 7.
Special Agent Dolan, who has special technical training in
interpreting the raw data provided in the cell records, used
those records to create a map that showed call locations. The
finished map was intended to be, as FBI Special Agent Nich‐
olas Manns put it colorfully, “agent‐proof,” that is, clear
enough that technical expertise would not be required to ex‐
plain or understand it. The government presented the evi‐
dence not through Dolan but through Manns.
Manns testified that “the records provide what we call cell
site data, which … when we use the phone it touches towers
and the towers transfer, etc., so we’re able to tell from those
towers where the phone” was located. Manns added that the
“FBI has specialized agents that are very good at analyzing
these phone records,” but also noted that the records were
“pretty self‐explanatory.” Manns also said he was “not real
No. 15‐1309 7
tech savvy” but that the map was easy to understand. The
map was then admitted into evidence without objection.
Manns explained the map and various cell locations on May
6 and 7 placing Ridley’s cell phone in the vicinity of the rob‐
bery. Again, the defense did not object.
When a party makes a timely objection to admitting evi‐
dence, we review the decision for abuse of discretion, giving
considerable deference to the trial judge on the spot. E.g.,
United States v. Wantuch, 525 F.3d 505, 513 (7th Cir. 2008). But
because Ridley did not object to this testimony by Agent
Manns, we review only for plain error. United States v. Chris‐
tian, 673 F.3d 702, 707–08 (7th Cir. 2012) (also involving Agent
Manns, coincidentally). This means Ridley must demonstrate
an obvious and prejudicial error that caused a “miscarriage of
justice, in the sense of seriously affecting the fairness, integ‐
rity, or public reputation of judicial proceedings.” Id. at 708,
quoting United States v. Orr, 622 F.3d 864, 868 (7th Cir. 2010);
see generally United States v. Olano, 507 U.S. 725, 736 (1993);
United States v. Atkinson, 297 U.S. 157, 160 (1936).
In challenging this testimony by Agent Manns, the defense
had two principal strategies available at trial. First, it could
raise no objection but then challenge Manns’ credibility and
expertise on cross‐examination and in closing argument.
That’s what happened. Ridley’s lawyer questioned Manns as
to inferences he was drawing from the cell phone location
data, trying to inject doubt into his testimony. That strategy
did not work, and we assume that Manns’ testimony contrib‐
uted to the jury’s guilty verdicts.
With the benefit of hindsight, Ridley now wants a chance
to try the second strategy that was available at trial: try to ex‐
8 No. 15‐1309
clude the testimony by Agent Manns by challenging his qual‐
ifications. It’s not hard to understand, though, why a trial at‐
torney would not make this objection. If it had been sustained,
the government could have fixed the problem easily by call‐
ing Agent Dolan, who prepared the map and had more tech‐
nical expertise. The defense then would have had to try to
challenge a better qualified witness. By allowing the defense
to pursue its own strategy on this point, rather than interven‐
ing to bar some of Agent Manns’ testimony, the district court
did not commit a plain error.
We have addressed similar problems in cases raising Con‐
frontation Clause issues for the first time on appeal. For ex‐
ample, in United States v. Moon, 512 F.3d 359 (7th Cir. 2008), a
defendant raised a Crawford challenge to a government wit‐
ness’s testimony relaying a colleague’s findings. See Crawford
v. Washington, 541 U.S. 36 (2004). We found no plain error, ex‐
plaining that a proper objection against this witness’s testi‐
mony would have left the defendant worse off because the
government then could easily have produced the better qual‐
ified colleague who could speak directly to technical aspects
of the trial with greater authority. Moon, 512 F.3d at 361. And
when the defense chooses not to seek the readily available fix
for the arguable evidentiary problem, enabling the defense to
cross‐examine the less credible witness, we are especially re‐
luctant to find plain error when that strategy does not pay off.
See United States v. Maxwell, 724 F.3d 724, 728 (7th Cir. 2013)
(determining that there was no plain error if “it may be to de‐
fendants’ advantage to accept the hearsay version of evidence
… . The lack of a demand for testimony by an available de‐
clarant leads to the conclusion that the appellate argument is
strategic rather than sincere.”), quoting Moon, 512 F.3d at 361.
See also Melendez‐Diaz v. Massachusetts, 557 U.S. 305, 328
No. 15‐1309 9
(2009) (“It is unlikely that defense counsel will insist on live
testimony whose effect will be merely to highlight rather than
cast doubt upon the forensic analysis.”). Allowing Agent
Manns’ testimony was not a plain error.1
IV. Jury Instruction
After four days of evidence, the jury began deliberations.
The jury instructions included the standard instruction from
United States v. Silvern, 484 F.2d 879 (7th Cir. 1973) (en banc),
about seeking a unanimous verdict. After deliberating just a
few hours, the jury sent a note to the court: “Judge Herndon,
The jury is stuck on a verdict and cannot come to a unanimous
agreement. What should the jury do? Do we wait until a unan‐
imous agreement is reached? Or is there another option for
the jury?” Ridley’s lawyer asked for a mistrial, which the court
denied.
The judge proposed instead that the following note be sent
to the jury: “The Court requests that the jury continue in their
deliberations in an effort to reach a unanimous verdict.” Nei‐
ther side objected, and the judge sent the note to the jury. Later
that day, the jury returned with its guilty verdicts.
Ridley argues on appeal that the judge erred by respond‐
ing to the jury’s note about an impasse by failing to give a full
1
Ridley also argues on appeal that Agent Dolan’s map of cell phone
locations was inadmissible hearsay. He did not raise this objection at trial,
and in fact, his counsel affirmatively stated “No objection” to the map’s
admission. This intentional choice not to object amounted to waiver.
United States v. Cooper, 243 F.3d 411, 415–16 (7th Cir. 2001). If we consid‐
ered the possibility of a plain error, our reasoning would track our analy‐
sis of Agent Manns’ testimony.
10 No. 15‐1309
Silvern instruction. Silvern was a response to decades of de‐
bates in the wake of Allen v. United States, 164 U.S. 492 (1896),
in which the Supreme Court upheld a supplemental jury in‐
struction that “encouraged the jurors to reconsider their indi‐
vidual positions” in the face of a deadlocked jury. United States
v. Collins, 223 F.3d 502, 508–09 (7th Cir. 2000) (summarizing
development of Silvern).
Recognizing the risk that an Allen instruction could un‐
duly pressure some jurors to go along with a majority merely
for the sake of unanimity, we adopted in Silvern a standard
script for judges to offer juries. Id. The script was meant pri‐
marily as a safe harbor to help minimize appeals of instruc‐
tions to divided juries “in the interest of judicial economy and
uniformity.” Silvern, 484 F.2d at 882–83. But the script was not
only a safe harbor. We warned in Silvern: “If in any jury trial
tried after thirty (30) days from this opinion a supplemental
instruction relating to a deadlock is given other than in the
above form, a resulting conviction will be reversed and re‐
manded for a new trial.” Id. at 883. Ridley argues that in re‐
sponse to the jury’s note, the district court was permitted only
to repeat the Silvern language without deviation.2
2
The full text of the Silvern instruction reads:
The verdict must represent the considered judgment of each
juror. In order to return a verdict, it is necessary that each ju‐
ror agree thereto. Your verdict must be unanimous.
It is your duty, as jurors, to consult with one another and to
deliberate with a view to reaching an agreement, if you can
do so without violence to individual judgment. Each of you
must decide the case for yourself, but do so only after an im‐
partial consideration of the evidence with your fellow jurors.
No. 15‐1309 11
Silvern itself, however, did not address issues of waiver or
plain error. Because Ridley did not object at trial, we review
the judge’s response to the jury note only for plain error. Fed.
R. Crim. P. 52(b); United States v. Rodriguez, 67 F.3d 1312, 1320
(7th Cir. 1995) (reviewing instructions deviating from Silvern
for plain error where no objection was made); United States v.
Allen, 797 F.2d 1395, 1400 (7th Cir. 1986) (same). To show a
plain error, as noted above, Ridley must demonstrate that “(1)
there was error, (2) it was plain rather than subject to reason‐
able dispute, (3) it affected his substantial rights, and (4) the
court should exercise its discretion to correct the error because
it seriously affected the fairness, integrity, or public reputa‐
tion of the judicial proceedings.” United States v. Seals, 813 F.3d
1038, 1045 (7th Cir. 2016).
We find no plain error. Despite the strong language in Sil‐
vern itself, quoted above, we have rejected the hard‐and‐fast
approach to Silvern that Ridley advocates. E.g., Collins, 223
In the course of your deliberations, do not hesitate to reex‐
amine your own views and change your opinion if convinced
it is erroneous. But do not surrender your honest conviction
as to the weight or effect of evidence solely because of the
opinion of your fellow jurors, or for the mere purpose of re‐
turning a verdict.
You are not partisans. You are judges—judges of the facts.
Your sole interest is to ascertain the truth from the evidence
in the case.
484 F.2d at 883. This court’s pattern jury instructions for both criminal and
civil cases have made stylistic changes to this formula. See Pattern Crimi‐
nal Jury Instructions of the Seventh Circuit 7.03 (2012); Federal Civil Jury
Instructions of the Seventh Circuit 1.34 (2015), which are both available at
www.ca7.uscourts.gov.
12 No. 15‐1309
F.3d at 509 (“Any deviation from Silvern is not necessarily re‐
versible error.”); Rodriguez, 67 F.3d at 1319–20 (“[W]e have not
required trial courts to replicate the approved [Silvern] lan‐
guage with no deviation.”). At least when a defendant does
not object to the phrasing of a supplemental jury instruction,
our inquiry “is not whether the trial court recited the ap‐
proved language with perfect accuracy, but rather whether
the judge’s departure from the approved language changed
the balance struck by the approved language in such a way as
to be more coercive of unanimity.” Id. at 1320.3
Our primary concern in such cases is whether the court’s
instructions “pressured the jury to surrender their honest
opinions for the mere purpose of returning a verdict.” United
States v. Crotteau, 218 F.3d 826, 835 (7th Cir. 2000), quoting
United States v. Kramer, 955 F.2d 479, 489 (7th Cir. 1992). The
judge’s response to the jury note did not do that. It merely re‐
quested that the jury continue to deliberate. The response did
not require continued deliberations and did no more than en‐
courage the jury to reach a unanimous verdict, as the full Sil‐
vern instruction had done a few hours earlier as part of the
complete set of jury instructions.
In United States v. Degraffenried, 339 F.3d 576 (7th Cir. 2003),
we confronted a nearly identical response to a jury note. The
3
We reject Ridley’s assertion that his lawyer did object to the jury in‐
structions. His lawyer moved for a mistrial on the ground that the jury
seemed deadlocked. Not surprisingly, the judge denied that motion, com‐
ing as it did so early in deliberations. The judge then consulted both coun‐
sel as to the wording of the instruction. Ridley’s lawyer made a wording
suggestion that the judge adopted. The defense made no further objection,
though the judge asked for suggestions a second time, and neither side
asked the court to give further Silvern instructions.
No. 15‐1309 13
judge had given the full Silvern instruction before delibera‐
tions began, and the jury sent a note indicating it was dead‐
locked. The judge sent the jury a note reading: “Members of
the jury, I’ve read your note. Please continue deliberations.”
We held this to be non‐coercive, neutral, and “entirely
proper.” Id. at 579–81.
The judge’s response here was similarly neutral, like other
instructions we have found acceptable. For instance, a judge
may request that a jury continue to deliberate without provid‐
ing the full Silvern instruction. See, e.g., United States v. Smith,
818 F.3d 299, 301 (7th Cir. 2016) (note to jury saying “each of
you is part of the jury that has been picked to decide this case.
Each of you must continue to deliberate.”); Kramer, 955 F.2d at
489 (note to jury said only “Continue your deliberations.”);
United States v. D’Antonio, 801 F.2d 979, 983–84 (7th Cir. 1986)
(note to jury saying “Please continue your deliberations. I
shall call you into the courtroom at 4:30 p.m.”). This is not the
rare case where the instruction is coercive in context. See
United States v. Blitch, 622 F.3d 658, 669–71 (7th Cir. 2010) (re‐
manding for new trial where, after poll revealed jury was one
vote short of unanimity, district judge instructed jury to con‐
tinue deliberating toward unanimous verdict even though
jury had previously been told they could leave early that day).
There is no doubt that a defendant has a constitutional
right to an impartial, uncoerced jury. Lowenfield v. Phelps, 484
U.S. 231, 241 (1988); Schaff v. Snyder, 190 F.3d 513, 535 (7th Cir.
1999). But as we explained in United States v. Sblendorio, our
Silvern instruction is a supervisory rule with no “constitu‐
tional overtones.” 830 F.2d 1382, 1388 (7th Cir. 1987) (noting
that Silvern instructions are within the constitutional bounds
set by the stronger Allen instructions). The model instruction
14 No. 15‐1309
was designed “in the interest of the effective administration
of justice,” as a method of eliminating excess litigation by de‐
fendants challenging jury instructions. Id. The Silvern model
was not intended as an indispensable safeguard of constitu‐
tional rights, and there is no “right” to receive a Silvern in‐
struction, especially when the defense does not ask for it. Id.;
see also Chavez v. Martinez, 538 U.S. 760, 772 (2003) (“viola‐
tions of judicially crafted prophylactic rules do not violate the
constitutional rights of any person”).
In addition, to show plain error, a defendant must show
that the error was prejudicial, resulting in a miscarriage of jus‐
tice. See United States v. Williams, 552 F.3d 592, 593–94 (7th Cir.
2009). The judge’s neutral response to the jury in this case was
not prejudicial for the reasons explained above. The district
court did not commit plain error by requesting, in language
approved by counsel for both sides, that the jury continue de‐
liberations.
The judgment of the district court is AFFIRMED.