In the
United States Court of Appeals
For the Seventh Circuit
No. 10-1764
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
T REMAINE W HITE,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Western Division.
No. 08 CR 50058—Frederick J. Kapala, Judge.
A RGUED D ECEMBER 2, 2010—D ECIDED A PRIL 6, 2011
Before E ASTERBROOK, Chief Judge, and M ANION and
W ILLIAMS, Circuit Judges.
M ANION, Circuit Judge. Tremaine White was convicted
of bank robbery and sentenced to 137 months’ imprison-
ment. White appeals, challenging the district court’s
admission of testimony from his sister and ex-girlfriend
that he is the individual in a still photograph taken
from the surveillance video of the bank robbery. He
also challenges the district court’s admission of a hand-
2 No. 10-1764
written demand note recovered from his rental car, and
the district court’s reliance on that note to enhance his
sentence for having made a threat of death during the
robbery. We affirm.
I.
On December 26, 2008, an individual, later identified
as Tremaine White, entered a US Bank branch in Rock-
ford, Illinois and approached the sole bank teller on
duty. After asking the teller some questions, White slid
a note across the counter demanding all of the money
in her drawer and instructing her not to include any
dye packs. The note also stated that White had a
weapon, although the teller does not remember the
exact wording of the note. When White slid the note
across the counter, he placed his hand inside the waist-
band of his pants, as if he were grabbing a gun. The
teller followed White’s directions and gave him all of
the money in the drawer, totaling $18,582.
After White left the bank, the teller activated the
bank alarm. Police responded immediately. The teller
explained in detail how the robbery had occurred and
provided the officers with a description of the robber—6'-
6'2, black male, with small eyes, and approximately
215 pounds. The teller also described the demand note,
telling the police that it was written on lined paper, with
a frayed edge as if torn from a spiral notebook; she
also told the officers what, to the best of her recollec-
tion, it said.
No. 10-1764 3
Meanwhile, White took the robbery proceeds back
to the house he shared with his uncle, William Cole
(“Uncle Bill”), and his mother. His sister, Shenay White,
was also at the house and saw White holding a bag con-
taining a large amount of money in wrappers that ap-
peared to have come from a bank. The next day White
gave Shenay a little over $3,000 to bond his girlfriend,
Kristina Saylor, out of jail—the apparent motive for the
crime. White then placed the rest of the money in a
plastic bag in his closet where Shenay later discovered
it. Shenay helped herself to about $1,200 and then
told Uncle Bill about the money, who also took some of
the money. When White discovered the loss, he con-
fronted Shenay and angrily accused her of stealing his
money. She returned the money, but White allowed her
to keep $400.
Shenay was either upset that White wouldn’t share
more of the robbery proceeds, or feared she would be
blamed for being in on the bank robbery since she had
used the money to bail out Saylor. Whatever the motiva-
tion, a few days after the robbery Shenay went to the
police and told them that she suspected her brother of
robbing the US Bank. Investigators showed Shenay a
still photograph from the bank surveillance video and
she identified White as the robber. They also showed
the still photograph to Saylor and she too identified
White as the individual in the photograph. Officers
then created a photo-array with White and several
other similar-looking individuals and showed it to the
teller. The teller immediately identified White as the
robber.
4 No. 10-1764
On December 29, 2008, after the teller identified White,
the police arrested him at his home. They searched
the house, but did not find the money. The officers
did, however, seize a coat and boots that the teller later
identified as similar to those worn by the robber. After
the police left, Shenay and Uncle Bill searched the house
for the money and found it hidden in the basement in
an electrical compartment of the washing machine.
There was still about $12,000 left, which they divided
between themselves before spending it on various items;
they were later charged with possessing bank robbery
proceeds. Police conducted a second search the next
day—too late to find the money—but they did find jeans
and a stocking cap which matched those worn by
the robber, as described by the teller and shown in the
surveillance video.
Police also searched White’s rental car, which police
had impounded at the time of his arrest, and recovered
a robbery demand note. It was written on a piece of
lined notebook paper with a frayed edge, matching
the description of the note the bank teller had given.
The officers also recovered a notebook from which the
demand note had apparently been torn. The note read:
I have a gun. Give me the money in the register. No
dye packs, no silent alarms, and no one will get hurt.
Do it quickly.
Before trial, police showed the note to the teller, but she
said that she did not think it looked like the note used
in the robbery.
Based on the above evidence, a grand jury indicted
White on one count of bank robbery in violation of 18
No. 10-1764 5
U.S.C. § 2113(a). White pleaded not guilty and pro-
ceeded to trial. After his arrest, but before trial, White
continued to speak with Saylor and during one of
those conversations he told Saylor to tell the police that
he did not commit the robbery and that he was not the
man in the surveillance photograph.
At trial, the above evidence was presented. Addi-
tionally, Shenay and Saylor (now an ex-girlfriend)
testified that the man shown in a still photograph
from the surveillance video was White. The teller also
testified, describing the robbery and the robber in
detail, and she again identified White as the robber. The
government also presented the recovered demand note,
but the teller could not say whether it was the one used
during the robbery. White, for his part, presented as his
theory of defense that he was not the robber—but that
it was Uncle Bill.
The jury apparently rejected White’s theory of the
case and convicted him of bank robbery. The district
court then sentenced him to 137 months’ imprisonment.
In calculating White’s guideline range, the district court
found that the note recovered from the rental car was
the note used during the bank robbery. And because
that note had stated that White had a gun, the
district court enhanced White’s guideline range under
§ 2B3.1(b)(2)(F) for having made a threat of death
during the robbery. White appeals.
6 No. 10-1764
II.
On appeal, White claims the district court erred in
admitting testimony from his sister and ex-girlfriend
that he is the individual shown in the still photograph
from the surveillance video taken during the bank rob-
bery. White also challenges the district court’s admission
of the handwritten demand note recovered from his rental
car. Finally, White challenges his sentence, arguing the
district court erred in relying on the demand note to
enhance his sentence for having made a threat of death
during the robbery. We consider each issue in turn.
A. Identification
As noted above, at White’s trial both his sister, Shenay,
and his ex-girlfriend, Saylor, testified that the man
shown in the still photograph from the surveillance tape
of the bank robbery was White. White did not object
to Shenay’s testimony but did object to Saylor’s, so the
standard of review is plain error and abuse of discretion
respectively. United States v. Towns, 913 F.2d 434, 445-
46 (7th Cir. 1990).
The identifications of White by Shenay and Saylor
from the still photograph are considered lay opinion
evidence and their admissibility is governed by Federal
Rule of Evidence 701. Under Rule 701, a lay witness’s
opinion is admissible if it is: “(a) rationally based on
the perception of the witness and (b) helpful to a clear
understanding of his testimony or the determination of
the fact in issue.” Fed. R. Evid. 701. Here, Shenay and
No. 10-1764 7
Saylor’s testimony met the requirements of Rule 701 and
was properly admitted. Both witnesses—one his sister,
the other his ex-girlfriend—were very familiar with
White, and thus their opinion was “rationally based” on
their perceptions. Additionally, their testimony satisfies
the second prong of Rule 701 because it helped deter-
mine a fact in issue, i.e., the identity of the bank robber.
In response, White argues that allowing a lay witness
to identify him as the culprit invades the province of
the jury. We have already rejected this argument in
United States v. Jackson, 688 F.2d 1121 (7th Cir. 1982). In
Jackson, the district court allowed a witness who had
met the defendant on only one occasion to offer lay
opinion testimony that he was the individual shown in
a surveillance video robbing a bank. Among other
things, the defendant argued that permitting such lay
opinion testimony usurped the jury’s function. We
rejected that argument, explaining: “The jury was free to
believe or disregard [the witness’s] testimony; the issue
of whether the defendant was the same person as the
bank robber was left to the jury for its ultimate deter-
mination.” Id. at 1126 Similarly, in this case the jury
was free to disregard Shenay and Saylor’s testimony
that the individual depicted in the still photo from the
surveillance video was White. See also United States v.
Towns, 913 F.2d 434 (7th Cir. 1990) (holding the
district court did not err in admitting lay opinion testi-
mony from the defendant’s ex-girlfriend that the de-
fendant was one of the robbers in a bank surveillance
photograph); United States v. Stormer, 938 F.2d 759, 762
(7th Cir. 1991) (holding the district court did not err in
8 No. 10-1764
admitting lay opinion testimony that defendant was the
individual depicted in a bank surveillance photograph).
White also argues that lay opinion evidence on the
identity of an individual shown in a surveillance photo-
graph is only permitted if the defendant’s appearance
had changed since the crime or if the accused had at-
tempted to disguise himself. While both circumstances
would justify the admission of lay opinion testimony,
Jackson, 688 F.2d at 1125, Towns, 913 F.2d at 445, Stormer,
938 F.2d at 762, neither is required. Rather, as we ex-
plained in Towns, “[g]enerally, a lay witness may testify
regarding the identity of a person depicted in a surveil-
lance photograph ‘if there is some basis for concluding
that the witness is more likely to correctly identify the
defendant from the photograph than is the jury.’ ” Towns,
913 F.2d at 445. This case presents just such a circum-
stance. While White did not wear a disguise, the view of
his appearance in the surveillance video and in still
shots was limited by his attire—he wore a bulky winter
coat closed up to his chin and a hat pulled down to his
eyebrows. The surveillance video was also not of the
best quality. In fact, at trial, White’s attorney claimed
that even if the jury watched “that video a hundred
times,” they would not “get a good enough look at the
person involved to determine who is the bank robber.”
He later added: “No reasonable human being can
make out in that photograph sufficient features to de-
termine who is depicted there.” Also, as noted above,
White’s theory of defense was that the man depicted in
the still photographs was really Uncle Bill, and White’s
attorney argued that the robber’s hat prevented the
No. 10-1764 9
jury from determining whether the man robbing the
bank had grey hair (like Uncle Bill), or black hair, like
White. Finally, while cross-examining the teller, White’s
attorney argued that because White and his uncle were
relatives, the teller could easily have mistaken White
for his uncle. Because both Shenay and Saylor knew
White and Uncle Bill, they were able to provide the
jury with helpful insight regarding the true identity of
the man shown in the surveillance video and counter
White’s claim that the still photograph really de-
picted Uncle Bill. In fact, in questioning Saylor after
she identified White as the individual shown in the
photograph, the government asked: “And you made
that identification having seen both Tremaine White
and knowing the appearance of William Cole, correct?”
Saylor responded “yes.” All of these circumstances
make Shenay and Saylor’s lay opinion testimony helpful
to the jury and thus admissible under Rule 701.
B. Demand Note
White next challenges the district court’s decision to
admit the demand note recovered in his rental vehicle,
claiming that the note was not properly authenticated,
that it was inadmissible hearsay, and that any probative
value was outweighed by unfair prejudice. At trial,
White objected to the admission of the demand note,
but solely because the bank teller had told authorities
that she didn’t think the note recovered looked like the
one used in the robbery. While in making this objection
White did not use the buzz word “authentication,” the
10 No. 10-1764
objection was sufficient to preserve the issue. Thus, we
review the question of authentication for an abuse of
discretion. United States v. Whitaker, 127 F.3d 595, 600-01
(7th Cir. 1997). However, before the district court,
White did not raise a hearsay or unfair prejudice objec-
tion to the admission of the demand note. Therefore, our
review of those two challenges is for plain error. Prymer
v. Ogden, 29 F.3d 1208, 1213-14 (7th Cir. 1994) (holding
that “[a] specific objection made on the wrong grounds
and overruled precludes a party from raising a specific
objection on other, tenable grounds on appeal”) (internal
quotation omitted).
We first consider White’s authentication objection.
Federal Rule of Evidence 901(a) requires, as a condition
precedent to admissibility, “evidence sufficient to sup-
port a finding that the matter in question is what its
proponent claims.” Fed. R. Evid. 901(a). In this case, at
trial the government presented the demand note as a
note recovered from White’s rental vehicle. And the
government presented evidence, in the form of testi-
mony from the officer who recovered the note, estab-
lishing that that was exactly what the note was. Thus,
the government properly authenticated the note.
White responds that even if the police found the note
in White’s rented car, the government did not properly
authenticate the note as the one actually used in the
bank robbery. But at trial the government never claimed
that the demand note recovered from White’s rental
car was the same one used during the robbery. In fact,
during closing argument, the prosecutor instead sug-
gested that it may “have been a practice note,” or it
No. 10-1764 11
could have “been intended to be the note that was used
and then misplaced so [White] had to make up another
note.” The district court likewise did not admit the note
on the premise that it was the one used during the rob-
bery, stating instead “whether it’s the same note that
he actually presented to her isn’t determinative of its
admissibility.” Because the demand note was admitted
at trial solely as a note recovered from White’s car,
there was no need for the government to further
establish that the note was the one used during the rob-
bery for it to be authenticated.1
Additionally, White claims on appeal that the demand
note was inadmissible hearsay. Hearsay is “a statement,
other than one made by the declarant while testifying
at the trial or hearing, offered in evidence to prove the
truth of the matter asserted.” Fed. R. Evid. 801(c). Hearsay
is inadmissible unless an exception applies. Fed. R. Evid.
802. In this case the demand note was not hearsay
because it was not offered to prove the truth of the matter
asserted. United States v. Bursey, 85 F.3d 293, 296 (7th Cir.
1996) (“[S]tatements that are offered not to prove ‘the
truth of the matter asserted,’ but for some other
legitimate purpose, do not qualify as hearsay.”). First, a
command is not hearsay because it is not an assertion
1
On appeal, the government claims the demand note was
authenticated by circumstantial evidence as the note used
during the bank robbery, see, e.g., United States v. DeGudino,
722 F.2d 1351, 1361 (7th Cir. 1983), but since the note was not
admitted for that purpose at trial, we need not decide
whether it was authenticated as such.
12 No. 10-1764
of fact. See United States v. Murphy, 193 F.3d 1, 5 (1st Cir.
1999) (explaining that “the out-of-court statements in
question were simply directions (e.g., to make false state-
ments in the warrant applications) and not statements
of fact at all,” and therefore the “evidence in question
was not hearsay at all”). Thus, the note’s directive to
“[g]ive me the money in the register. No dye packs, no
silent alarms,” is not hearsay. The only possible factual
assertions in the note were “I have a gun” and “and no
one will get hurt.” But the demand note was not ad-
mitted to prove the truth of either assertion. The gov-
ernment did not seek to prove that White actually had
a gun, but rather that the teller feared that he did; nor
did it seek to establish that no one would get hurt if
the teller complied with the robber’s demands. White
responds that the district court should have provided
the jury with a limiting instruction regarding the
proper use of the note. White, however, did not request
a limiting instruction and given that the government
never argued that the note was the one used in the
robbery or that White was actually armed during the
bank robbery, the district court did not commit plain
error in failing to sua sponte issue a limiting instruction.
Next, White argues that any probative value of the
demand note was outweighed by unfair prejudice, and
thus the district court erred in admitting the note
under Federal Rule of Evidence 403. Again, our review
is for plain error only. In this case there was no
error, much less plain error. The demand note recovered
from the car was extremely probative on the question
of whether White robbed the US Bank—it showed plan-
No. 10-1764 13
ning and preparation. White responds that the mention
of a gun in the note made it unduly prejudicial. But the
teller testified that the robber’s note had stated he had
a weapon and that at the same time that he slid her the
note, he reached toward his waistband, as if reaching
for a gun. That the note admitted at trial stated White
had a gun as opposed to a weapon does not make the
note unfairly prejudicial, and in any event, any unfair
prejudice is outweighed by the probative value of the
note. Accordingly, the district court did not err in ad-
mitting the demand note.
C. Sentencing
Finally, White challenges his sentence, claiming that the
district court erred in assessing him a two-level guideline
enhancement under § 2B3.1(b)(2)(F) for having made
a threat of death during a robbery. In concluding that
a § 2B3.1(b)(2)(F) enhancement was appropriate, the
district court found, based on the preponderance of the
evidence, that the demand note seized from White’s
rental car was the note used during the bank robbery.
Because that note stated that White had a gun, the
district court concluded that alone was sufficient to
support the § 2B3.1(b)(2)(F) enhancement. But the dis-
trict court also reasoned that White’s movement with
his hand to his waistband “would further cause a rea-
sonable teller to believe that defendant had a gun
and cause the teller fo fear death.” The district court
added that the teller’s actions, manner, and demeanor
in the video further caused the court to conclude that
the note constituted a threat of death.
14 No. 10-1764
On appeal, White again contends that the demand note
was not properly authenticated and thus could not be
used to support the § 2B3.1(b)(2)(F) enhancement. But the
Federal Rules of Evidence do not apply at sentencing
hearings—the only question is whether the evidence was
“reasonably reliable.” United States v. Morris, 76 F.3d 171,
174 (7th Cir. 1996). Moreover, we review the district
court’s judgment only for clear error, United States v.
Johnson, 324 F.3d 875, 877 (7th Cir. 2003), and the district
court did not commit clear error in finding that the de-
mand note recovered from White’s car was the one used
in the robbery. While the teller told police she didn’t
think it looked like the note White had given her, she
had also told officers that she had only skimmed the
note and, as the district court found, at the time of the
robbery she was frightened. Given that the recovered
demand note matched in all respects the one described
by the teller (written on lined notebook paper with
frayed edges and stating that the robber had a weapon,
demanding money, but no dye packs) and was re-
covered from White’s rental car, the district court could
reasonably believe that it was used by the robber and
the teller was mistaken. And because the district court
did not clearly err in finding that White had presented
the teller with a note which stated that he had a gun,
the district court properly enhanced White’s sentence
under § 2B3.1(b)(2)(F). United States v. Carbaugh, 141
F.3d 791, 794 (7th Cir. 1998). That is especially true
given that White also reached to his waistband as if he
had a gun, and given the teller’s fearful reaction cap-
tured on the surveillance video.
No. 10-1764 15
III.
The district court did not err in admitting testimony
from White’s sister and ex-girlfriend that he is the in-
dividual shown in a still photograph from the sur-
veillance video from the bank. This testimony was permis-
sible lay opinion evidence that helped the jury deter-
mine a question in fact, namely the identity of the
bank robber, and was extremely helpful given White’s
argument that Uncle Bill was the real perpetrator. The
district court also did not err in admitting the hand-
written demand note recovered from White’s rental car
because it was properly authenticated, not hearsay, and
its probative value outweighed any undue prejudice.
And the district court did not err in relying on that
note to enhance White’s sentence for having made a
threat of death during the robbery. We A FFIRM .
4-6-11