United States v. Cunningham

393 F. App'x 403
CourtCourt of Appeals for the Seventh Circuit
DecidedSeptember 9, 2010
DocketNo. 09-3201
StatusPublished
Cited by1 cases

This text of 393 F. App'x 403 (United States v. Cunningham) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Cunningham, 393 F. App'x 403 (7th Cir. 2010).

Opinion

ORDER

Following a jury trial, Thomas Cunningham was found guilty of one count of bank robbery, see 18 U.S.C. § 2113(a), and sentenced to 180 months’ imprisonment, 30 months below his guidelines range of 210 to 240 months. Cunningham appeals, but his appointed counsel has concluded that the appeal is frivolous and moves to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). We review only the issues presented in counsel’s facially adequate brief and in Cunningham’s ■ response. See CIR. R. 51(b); United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002).

Cunningham was indicted on October 10, 2007, and charged with robbing the First Savings Bank of Hegewisch in Lansing, Illinois. He moved in May 2008 to have the indictment dismissed for violation of the Speedy Trial Act; the district court denied the motion. Trial began on December 15, 2008, and the jury found Cunningham guilty the next day.

Counsel first considers whether any violation of the Speedy Trial Act occurred, given that 430 days passed between the indictment and trial. A defendant must be tried within 70 days of his indictment or his first appearance before a judge, see 18 U.S.C. § 3161(c)(1), but certain periods of time are excluded from the 70-day calculation, see 18 U.S.C. § 3161(h). The total unexcused delay here did not approach 70 days. As counsel notes, the district court properly invoked the “ends of justice” exception, see 18 U.S.C. § 3161(h)(7)(A), to exclude the time from Cunningham’s arraignment on October 16, 2007, to May 7, 2008, for preparation of pretrial motions, for plea negotiations, and for new attorneys to familiarize themselves with Cunningham’s cases. See 18 U.S.C. § 3161(h)(7)(A), (B)(iv); Bloate v. United States, — U.S. -, 130 S.Ct. [406]*4061345, 1357-58, 176 L.Ed.2d 54 (2010); United States v. Napadow, 596 F.3d 398, 404-05 (7th Cir.2010); United States v. Montoya, 827 F.2d 143, 150 (7th Cir.1987). The court also appropriately excluded the time from when Cunningham filed his motion, on May 7, to its denial of the motion on July 16. See 18 U.S.C. § 3161(h)(1)(D); Bloate, 130 S.Ct. at 1353; Napadow, 596 F.3d at 406. And the court properly excluded the time from July 16 to December 1 for trial preparation and continuity of counsel. See 18 U.S.C. § 3161(h)(7)(A), (B)(iv); Napadow, 596 F.3d at 405; United States v. Santos, 201 F.3d 953, 959 (7th Cir.2000). Even if the final two-week delay until the trial began on December 15 were improperly excluded, no violation of the Speedy Trial Act occurred.

Counsel next considers whether the district judge should have recused himself because an Assistant United States Attorney prosecuting the case had previously served as his law clerk. Before the trial began, Judge Leinenweber denied Cunningham’s motion to disqualify himself under 28 U.S.C. § 455. Denial of such a motion, however, can be challenged only with a writ of mandamus — not on appeal after the proceeding is complete. See Tezak v. United States, 256 F.3d 702, 717 n. 16 (7th Cir.2001). (We previously denied Cunningham’s petition for a writ. See In re Cunningham, No. 08-4203 (7th Cir. Dec. 19, 2008) (order).) And the record contains no evidence of actual bias that would require recusal under 28 U.S.C. § 144. See Hoffman v. Caterpillar, Inc., 368 F.3d 709, 717-18 (7th Cir.2004).

Counsel also examines whether the district court abused its discretion when it granted seven of the government’s motions in limine. The motions in limine sought to exclude, among other things, evidence regarding the potential penalties Cunningham faced if convicted; the government’s motivation for prosecuting the case; the impact a conviction would have on Cunningham’s family; and evidence that Cunningham was coerced, unless he could meet the burden of proof necessary for that defense. But we would conclude that Cunningham waived any argument regarding these motions because his trial counsel expressly declined to object to the court’s decision to grant them. See United States v. Murry, 395 F.3d 712, 717 (7th Cir.2005); United States v. Cooper, 243 F.3d 411, 416 (7th Cir.2001).

Counsel also considers whether the district court improperly denied several of Cunningham’s objections during trial. He objected, for example, to the government’s introduction of a letter from an attorney at the Federal Deposit Insurance Corporation as proof that the bank was insured by the FDIC. But an affidavit from the FDIC can be used to confirm a bank’s insured status, so challenging the court’s decision to allow that evidence would be frivolous. See United States v. Hampton, 464 F.3d 687, 690 (7th Cir.2006). Cunningham also objected to certain testimony that arose at trial: testimony about another bank robbery that occurred nearby on the same day; a witness’s use of the word “robber” to describe the person who took the money from the bank; the government’s asking a teller how she felt during her interaction with Cunningham on the day of the robbery; and the government’s asking a teller if she said, “Oh my God,” upon recognizing Cunningham after his arrest as the bank robber. But, as counsel acknowledges, any erroneous evidentiary rulings would have been harmless in light of the overwhelming evidence of Cunningham’s guilt. See Fed.R.Crim.P. 52(a); United States v. Cooper, 591 F.3d 582, 590 (7th Cir.2010).

[5] Counsel next considers whether the district court erred when it barred two [407]*407defense witnesses from testifying about Cunningham’s personal circumstances.

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Related

Cunningham v. United States
179 L. Ed. 2d 1213 (Supreme Court, 2011)

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Bluebook (online)
393 F. App'x 403, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-cunningham-ca7-2010.