United States v. Jarrett E. McGill

32 F.3d 1138, 1994 U.S. App. LEXIS 21870, 1994 WL 425358
CourtCourt of Appeals for the Seventh Circuit
DecidedAugust 15, 1994
Docket93-1868
StatusPublished
Cited by22 cases

This text of 32 F.3d 1138 (United States v. Jarrett E. McGill) 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. Jarrett E. McGill, 32 F.3d 1138, 1994 U.S. App. LEXIS 21870, 1994 WL 425358 (7th Cir. 1994).

Opinions

COFFEY, Circuit Judge.

The defendant, Jarrett E. McGill, was convicted by a jury of two counts of bank robbery (the robberies occurred on August 10, 1992 and August 21, 1992) in violation of 18 U.S.C. § 2113(a). Following the conviction, the court sentenced the defendant to two seventy-eight-month terms of imprisonment concurrent and concurrent with each other to be followed by concurrent three-year terms of supervised release. The court also ordered the defendant to pay $3,090 in restitution to the First Federal Savings Bank of Indiana. The defendant appeals both his conviction and the trial court’s application of the Sentencing Guidelines. We affirm.

I. BACKGROUND

On August 10, 1992, McGill entered the First Federal Savings Bank of Indiana in Gary, Indiana. McGill handed a teller, Phyllis Simpson, an envelope with a note stating “Act like this is a check for $50,000. Place the money in the envelope. Don’t alert any guards or the teller next to you or you’ll be shot.” McGill kept his hand in his pocket indicating he was armed but the teller did not view a weapon. The teller followed the directions, removed $1,070 from her drawer, placed it in the envelope and handed it to McGill who left the bank.

Eleven days later, on August 21, 1992, Simpson again observed McGill enter the bank but this time the defendant went to the window of teller Kristi Kallas and handed her a note telling her not to alert the guards but to act as though the note was a check for $5,000 and that she would not be hurt if she put all the money from her drawer in the envelope. The teller removed $2,160 from her drawer, placed it in the envelope and turned it over to McGill who exited the bank.

Two weeks thereafter on September 4, 1992, McGill entered the bank a third time but when he arrived both tellers Simpson and Kallas recognized him. Simpson set off [1141]*1141the hold up alarm and Roger Smith, a Gary Police officer, responded and arrested McGill. McGill did not have a “holdup” note in his possession at the time of arrest, but did have a “scribbled” note on a “crunched up” piece of paper having nothing to do with a bank robbery.

After his arrest, two FBI agents interviewed McGill who confessed to the two robberies (August 10th and August 21st) and signed a statement confessing to each robbery. The defendant also explained that on the day of the first robbery, he paid $586 with cash from the bank heist for a round-trip airline ticket to Florida. The FBI agents also discovered that on the day of the second robbery he purchased a used car for $1,250 in cash.

On September 4,1992, the date of McGill’s arrest and confession, the defendant allegedly attempted to escape from incarceration at the Metropolitan Correctional Center in Chicago, Illinois (“MCC”). A guard was alerted by some noise emanating from McGill’s holding cell, he went to the cell and discovered the defendant standing on top of the toilet with his head sticking through the ceiling (McGill had torn down a piece of ceiling tile). The guard ordered McGill down and made out a report reflecting his opinion that the inmate was attempting an escape into the ceiling area.1

Despite his confession to the FBI agents, McGill pled not guilty. At trial Gary Police officer Roger Smith testified that the defendant had a note in his possession at the time of his arrest. The defense moved for a continuance to investigate the existence of this alleged note. The Assistant U.S. Attorney explained to the court that there was no note whereupon both attorneys agreed to enter the following stipulation which the court read to the jury:

Ladies and gentlemen of the jury, it has been stipulated between the parties that this witness has testified that a note was on the person of Jarrett McGill on September 4th, 1992. That is incorrect. Assistant United States Attorney Clarence Butler, Jr. has provided an open file to Attorney John McGrath since the start of this proceeding and has provided him with everything in his possession since his representation in this matter. The Assistant United States Attorney does not have any knowledge of any such note. The stipulation is signed by defense attorney John McGrath and by Assistant United States Attorney Clarence Butler, Jr.2

After the trial, the jury returned guilty verdicts on both counts.

II. ISSUES

The defendant argues that the trial court erred in refusing to grant defense counsel’s motion for a continuance and in allowing an improper and prejudicial stipulation to be read to the jury. The defendant also contends that his sentence should not have been increased for obstruction of justice as there was insufficient evidence presented by the government to warrant the conclusion that he had participated in an attempt to escape from custody.

III. DISCUSSION

A.

In challenging his conviction, McGill claims that the trial court improperly refused to grant a continuance to the defense to ascertain whether the defendant had in his possession a certain note at the time of his arrest. The defendant also argues that the court erred by reading the improper and prejudicial stipulation to the jury. Our re[1142]*1142view of the transcript reveals that defense counsel failed to preserve these two arguments, and thus forfeited them, because he agreed that a stipulation would negate the need for a continuance and he participated in drafting the stipulation. Thus, our review is limited to plain error. United States v. Olano, — U.S.-,-, 113 S.Ct. 1770, 1776, 123 L.Ed.2d 508 (1993).

During the defense’s cross-examination of police officer Roger Smith, Smith testified that the defendant had a note in his pocket. Further examination outside the presence of the jury revealed that McGill in fact did have a note on him but the note officer Smith was referring to was a “scribbled” and “crunched up” piece of paper having nothing to do with a bank robbery (in contrast to the demand bank robbery notes he handed to the tellers on the occasion of each of the two prior bank robberies). At trial for the August 10, 1992 and August 21, 1992 bank robberies, defense counsel moved for a continuance to allow him to inspect the files of the Gary Police Department and attempt to find the alleged note. After the Assistant U.S. Attorney agreed to stipulate that the officer’s testimony regarding the note was misleading, the court denied the motion. Defense counsel agreed that such a stipulation was a sufficient remedy. The two attorneys presented the court with the poorly drafted and inaccurate stipulation which we have recited in full supra. Based on defense counsel’s agreement at trial that the stipulation would remedy the surprise testimony and counsel’s participation in drafting as well as signing the stipulation, we hold that the defendant has waived any challenge to the motion for a continuance and the stipulation. Thus, we review for plain error. A plain error is one that “affects substantial rights” and “seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.” Olano, — U.S. at-, 113 S.Ct. at 1776-78; United States v. Davis, 15 F.3d 1393

Free access — add to your briefcase to read the full text and ask questions with AI

Related

United States v. Robert Jocko
Seventh Circuit, 2021
United States v. Kenneth Conley
Seventh Circuit, 2013
United States v. Conley
541 F. App'x 699 (Seventh Circuit, 2013)
United States v. Dale, Jason B.
Seventh Circuit, 2007
United States v. Dale
498 F.3d 604 (Seventh Circuit, 2007)
United States v. Hull
74 F. App'x 615 (Seventh Circuit, 2003)
United States v. Savage
59 F. App'x 821 (Seventh Circuit, 2003)
United States v. Robert Bailey
227 F.3d 792 (Seventh Circuit, 2000)
United States v. Bailey, Robert
Seventh Circuit, 2000
United States v. Salvador A. Hernandez
106 F.3d 737 (Seventh Circuit, 1997)
United States v. Edward Adio Badru
97 F.3d 1471 (D.C. Circuit, 1996)
United States v. Olivia Williams
64 F.3d 665 (Seventh Circuit, 1995)
United States v. Michael Henderson and Leroy Nolan
58 F.3d 1145 (Seventh Circuit, 1995)
United States v. Jacenty S. Domanski
48 F.3d 1222 (Seventh Circuit, 1995)
United States v. Lester W. Gilbert
45 F.3d 1163 (Seventh Circuit, 1995)
United States v. Flakes Kellum and Lynetta P. Durr
42 F.3d 1087 (Seventh Circuit, 1994)
United States v. Derrick Lipsey
43 F.3d 1473 (Sixth Circuit, 1994)
United States v. Jeffrey W. Harrison
42 F.3d 427 (Seventh Circuit, 1994)

Cite This Page — Counsel Stack

Bluebook (online)
32 F.3d 1138, 1994 U.S. App. LEXIS 21870, 1994 WL 425358, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-jarrett-e-mcgill-ca7-1994.