                             In the

United States Court of Appeals
               For the Seventh Circuit

No. 08-1854

U NITED STATES OF A MERICA,
                                                  Plaintiff-Appellee,
                                 v.

JOSEPH O. L EWIS,
                                              Defendant-Appellant.


             Appeal from the United States District Court
      for the Northern District of Indiana, Fort Wayne Division.
            No. 07 CR 12—Theresa L. Springmann, Judge.


        A RGUED A PRIL 10, 2009—D ECIDED JUNE 1, 2009




 Before B AUER, FLAUM, and E VANS, Circuit Judges.
  E VANS, Circuit Judge. In January 2007, three men
robbed a bank in Fort Wayne, Indiana, and Joseph Lewis
was pegged as one of the robbers. Lewis claimed that the
police had the wrong man, but at trial the government
presented evidence to the contrary, including testimony
from his cousin, whose house was the site of Lewis’s
arrest and the arrest of the two other men allegedly
involved in the heist. The jury found Lewis guilty of
armed bank robbery, and he appeals.
2                                               No. 08-1854

  During Lewis’s trial, several bank employees testified
about the day’s events. Although their accounts varied a
bit—which is not at all unusual—this is the story that
emerged. On the afternoon of the robbery, the bank was
infiltrated by three men—one with a gun—who eventually
grabbed money from the vault and one of the drawers.
The first was a shorter black man, of medium build. His
face was covered with a ski mask, he wore latex gloves,
and he had a dark top over a jersey with a number seven
on it. The second bandit was a tall, slender black man, also
wearing a ski mask and equipped with latex gloves.
He was wearing greenish-blue windbreaker pants and
white tennis shoes. The third robber went to the copy
room, where he restrained the assistant manager.
Feeling frightened, the manager kept her eyes closed
during the encounter but testified that she could tell the
robber was black from “his voice.” She also recalled
brushing up against the robber’s clothing, which felt
soft. Another teller caught a glimpse of the fellow in the
copy room and described him as a large man. A bank
surveillance photo showed the torso and legs of one of
the men who was wearing a tan sweatshirt with a dark
stripe down the sleeve. Another teller testified that one
of the thieves had braids or dreadlocks.
  With their loot in tow—a modest take of $17,049.92
(compliments to the Tower Bank of Fort Wayne for
being so exact!)—the three fled the bank in a brown car.
Unbeknownst to them, they also left the bank with a
hidden GPS tracking device embedded in a stack of
Jacksons. Police officers received a page when the GPS
unit started to move. It led them to a residential neighbor-
No. 08-1854                                             3

hood a couple of miles from the bank. They were johnny
on the spot, arriving at the scene in under 10 minutes.
Shortly thereafter, the GPS unit stopped sending out a
signal. The police, however, were able to pinpoint the
house where the GPS stopped emitting its whereabouts.
There, they hunkered down to see what developed.
  Nobody came or left from the house until later that
evening. At that time, Lewis’s cousin, Kenyatta Lewis
(who we will refer to as Kenyatta), returned from work to
a big surprise—cop cars lined up in front of his house.
Once he got wind of the situation he gave the police
permission to search his home. Inside, the police found
three men. One was a shorter black man who had a me-
dium build. The second was a tall, slender black man
with braids. The last, Lewis, was a stocky black man. The
officers also found a gun, some $10,000 of the $17,000+
dollars taken from the bank, and the bank’s broken GPS
unit. In the attic and in the master bedroom the police
discovered various items of clothing—including three
knit ski masks or hats, a jersey with the number seven
on it, white Nike tennis shoes, blue nylon pants, and a
striped, tan sweatshirt—which matched the clothes
described by tellers at the bank. Parked in the garage
officers found a silver car that was registered to Lewis’s
wife. In the trunk was a box of unused vinyl gloves, and
in the back seat officers discovered a discarded pair of
the gloves. DNA testing later linked them to one of the
men hiding out in Kenyatta’s home. Later, the police
found a brown car, matching the description of the get-
away car, a few blocks from the bank. It apparently was
ditched by the robbers and another car (probably the
silver one) was used to get to Kenyatta’s house.
4                                              No. 08-1854

   Kenyatta testified that he had been at work on the day
of the robbery and that nobody, including Lewis, had
permission to be at his home. Kenyatta did, however,
waver on whether Lewis had a way into the garage. At
first, he testified that he had given Lewis the garage
door opener over Thanksgiving, but on cross-examination
he denied ever doing so. In any event, the garage was
easily accessible. Kenyatta explained that he left a spare
opener in his unlocked car, which was parked in the
driveway. He also testified that he never gave Lewis the
key to the door leading from the garage into the house.
Before the robbery, Kenyatta testified, the door was in
fine condition. The same could not be said after the
robbery occurred—the door had been kicked in. Kenyatta
also testified that the clothes taken from his home
were not his, except for the tan, striped sweatshirt, which
(perhaps obviously) he hadn’t worn that day.
  Lewis was interrogated by police officers later that
evening, two of whom also testified at the trial. According
to the officers, Lewis’s story shifted throughout the
interrogation. At first, Lewis denied that he was
involved in the robbery. Later, he admitted that he was
the “look out,” and that he scoped out the bank a few
days before the robbery occurred. Eventually, he
claimed that on the day of the heist he met the three
robbers (which included the other two men found at
Kenyatta’s home) at a gas station near the bank. He
asserted that he told the others that he no longer wanted
to be involved. He eventually parted ways with the
other three and headed back to Kenyatta’s. Right as he
reached Kenyatta’s home, the three “real” robbers came
No. 08-1854                                                5

screeching into the driveway. Somehow, the others man-
aged to drive to the bank, rob it, and reach Kenyatta’s
home at the same time Lewis arrived. Lewis claimed
that he reached Kenyatta’s at 1:57 p.m, although one of
the officers pointed out that he (along with several other
officers) was already there at that time and saw no cars
arriving or leaving. Nonetheless, Lewis claimed that two
of the thieves jumped out, while the third sped off in
the brown getaway car. One of the robbers then kicked
in the door to Kenyatta’s home, and they both hid
there until uncovered by the police hours later.
  The entire interrogation was recorded on a DVD. Al-
though the DVD was not played for the jury—we were
told at oral argument that it was six hours long 1 —the
unredacted DVD was admitted into evidence. Although
none of the police officers mentioned it while testifying,
Lewis also revealed on the DVD that he was previously
convicted of bank robbery and that several of his
family members were incarcerated. Near the end, he
also said he “aided and abetted” the robbery, another
statement left unmentioned by the officers during trial.
The trial counsel objected to the DVD’s admission, claim-
ing that this last statement was unduly prejudicial and
improper opinion testimony by a lay witness. The
court overruled the objection but informed the jury that


1
  However, the DVD, which is part of the record, is just over
four hours long. One of the officers who interrogated Lewis
and testified during the trial also stated that the interview
lasted “over four hours,” suggesting counsels may have
been mistaken about the length of the DVD.
6                                               No. 08-1854

Lewis was not a legal expert and instructed them that, by
mentioning “aiding and abetting,” Lewis was neither
making a legal conclusion nor admitting to the crime
charged. At the end of the proceedings, the court
reassured the government that the jury could view the
DVD during their deliberations “[i]f they so chose.” Since
the jury room was equipped with a DVD player, they
could “review all of it or portions of it, however they
select.” After deliberating for a little less than four
hours, the jury found Lewis guilty of robbing the bank.
   Shortly after the trial, the government wrote to
Lewis’s trial counsel, informing him that it “inadvertently
failed to disclose” the fact that Kenyatta had a felony
conviction for dealing cocaine. Lewis responded by
filing a motion for new trial, claiming that this failure
violated Brady v. Maryland, 373 U.S. 83 (1963). The district
court concluded that the government had indeed sup-
pressed favorable impeachment evidence but none-
theless denied the motion, noting that Kenyatta’s drug
conviction, even if published to the jury, would not have
changed the outcome of the trial. Lewis now appeals,
with the help of newly appointed appellate counsel.
  Lewis first argues that the evidence of his prior bank
robbery conviction, which he repeatedly mentioned
throughout the recorded police interrogation, was errone-
ously admitted. He maintains that the statements only
show his propensity to commit bank robberies, a
purpose at odds with Federal Rule of Evidence 404(b).
Lewis did not testify at trial, thus the statements had no
value as impeaching evidence. We must first address the
No. 08-1854                                               7

standard of review, which Lewis claims is a thorny
issue. Believing that the objection was made off the
record, Lewis urges us to look to the broader context of
the proceedings to glean the precise nature of trial coun-
sel’s challenge. From that context, he contends, we can
surmise that the Rule 404(b) objection was preserved,
and thus he asks us to review the decision for an abuse
of discretion.
  There is no need, and no place, for such speculation. See
United States v. Rollins, 544 F.3d 820, 834 (7th Cir. 2008).
Lewis’s objection to the DVD was made outside of the
presence of the jury, but not outside of the record. There
are two sets of transcripts—one includes just the testi-
mony of the witnesses, while the other is more complete
and recounts the exchange regarding the objection. It’s
clear from the latter transcript that Lewis raised no
Rule 404(b) objection:
      Trial Counsel: Well, then the Court’s ruling is that
    the DVD is going in?
      The Court: The only objection is to that statement
    that, yeah, I aided and abetted?
      Trial Counsel: Yes, I object to it on the grounds
    that it is opinion testimony by a lay witness. It’s Joe
    Lewis’s making a legal conclusion. And again, it’s
    unduly prejudicial.
The parties discussed the admissibility of the DVD for over
10 pages of transcript and never mentioned Lewis’s
statements regarding his prior robbery conviction. This
failure to object forfeits the argument on appeal, and
8                                               No. 08-1854

consequently our review is only for plain error. United
States v. Gibson, 170 F.3d 673, 677-78 (7th Cir. 1999). Under
this onerous standard, we will only reverse if “the errors
resulted in an actual miscarriage of justice such that the
defendant probably would have been acquitted but for
the erroneously admitted evidence.” United States v.
Avila, 557 F.3d 809, 820 (7th Cir. 2009) (citations and
quotations omitted).
  The strange manner in which the DVD was admitted
into the record precludes Lewis from successfully
meeting this burden. There is no evidence in the record
that the jury ever heard Lewis’s statement about the
prior robbery. No portions of the DVD were played for
the jury. And although two officers testified about the
interrogation, neither mentioned Lewis’s prior convic-
tion. The unredacted DVD—rife with references to the
prior conviction—was nonetheless admitted into evi-
dence, and the jury had access to a DVD player during its
deliberation. But there is no way to know (from the
record before us) if the jury actually watched the DVD, let
alone the parts that include Lewis’s admissions. The
jury deliberated for a little less than four hours, which,
after accounting for even a minimal amount of time
for discussion, suggests that it did not view the whole
thing even if it viewed any portion of it at all. Lewis must
prove that the admission of the evidence resulted in an
“actual miscarriage of justice,” Avila, 557 F.3d at 820
(emphasis added), which is impossible since it’s ques-
tionable whether the jury actually watched the DVD.
 For the same reason, Lewis’s second challenge fails.
During the interrogation he also mentioned his family’s
No. 08-1854                                                9

criminal background, and he now argues, for the first
time, that this evidence is unduly prejudicial. Fed. R. Evid.
403. Because this argument was never presented to the
district court, we again review only for plain error, a
standard that Lewis cannot meet since there is no
evidence in the record that the jury reviewed the
relevant parts of the DVD.
  This is not to say that the district court properly
admitted the unredacted DVD. Lewis’s statements re-
garding his prior bank robbery fly in the face of Rule
404(b). The evidence proves nothing beyond Lewis’s
proclivity for robbing banks, which is the exact inference
that the rule is designed to root out. United States v.
Owens, 424 F.3d 649, 653-55 (7th Cir. 2005). And his fam-
ily’s criminal history was irrelevant as it risked painting
Lewis as just another member of a family that’s not
adverse to dabbling in criminal escapades. During oral
argument here, the AUSA (who also tried the case) could
not adequately explain why she declined to redact the
DVD before seeking to admit it into evidence, or why
she didn’t simply play the important snippets of the
interrogation during the trial. But the government’s
incomprehensible strategy does not excuse trial counsel’s
failure to object to such damaging evidence. While we
cannot reverse based on this error, we leave open for
another day the inquiry into trial counsel’s effectiveness.
  Lewis takes one last stab at the DVD. At one point in
the interrogation, Lewis mentioned that he aided and
abetted the bank robbery. Lewis emphasizes his lack of
legal expertise and contends that his untrained conclusion
10                                              No. 08-1854

was misleading and unduly prejudicial. Because an
objection was lodged in the district court, we review this
matter for an abuse of discretion. United States v. Price,
418 F.3d 771, 779 (7th Cir. 2005). Again, Lewis must
contend with the fact that the jury may not have even
heard the “aiding and abetting” statements on the DVD.
But here he has an additional hurdle to overcome. In
response to the objection, the court instructed the jury
that Lewis was not trained in the law and that any state-
ment about aiding and abetting should not be taken as a
legal conclusion or an admission of the elements of the
offenses charged. Absent any evidence to the contrary, “we
presume that the jury limited its consideration of the
testimony in accordance with the court’s instruction.”
United States v. Mallett, 496 F.3d 798, 802 (7th Cir. 2007).
Lewis does not address the limiting instruction, let alone
point to anything that would rebut this presumption;
therefore, we conclude that the district court committed
no reversible error.
  Finally, Lewis asks us to review the district court’s
denial of his motion for a new trial based on the govern-
ment’s failure to disclose Kenyatta’s prior felony con-
viction. We review the district court’s denial of the
motion for an abuse of discretion, viewing the evidence
in the light most favorable to the prevailing party, in
this case the government. United States v. Warren, 454
F.3d 752, 759 (7th Cir. 2006).
  In order to win a motion for a new trial based on a Brady
violation, the defendant must establish that the prosecu-
tion suppressed impeaching or exculpatory evidence
No. 08-1854                                             11

material to the case. The government does not dispute that
it withheld favorable impeachment evidence. The focus,
then, is on whether the evidence is material or, more
precisely, whether its timely disclosure would have
produced a different verdict. United States v. Wilson, 481
F.3d 475, 480 (7th Cir. 2007). Whether impeachment
evidence is material depends on a number of factors,
most importantly the strength of the case against the
defendant.
  Kenyatta’s testimony is not the best, or only, evidence
of Lewis’s guilt. Kenyatta explained that Lewis did not
have access or permission to be at his house on the day
of the robbery. But even if that testimony was discredited,
it would do little to alter the strength of the govern-
ment’s case. True, Kenyatta’s testimony undercuts
Lewis’s version of the day’s events—Lewis maintained
that he was going to his cousin’s home to watch cable
television when the robbers burst in. But Kenyatta’s
testimony was far from the only evidence to undermine
Lewis’s side of the story. Lewis himself, during the inter-
rogation, acknowledged that Kenyatta had no idea that
he was going to be there. What’s more, the GPS unit
directed police, within minutes of the robbery, to
Kenyatta’s home. There, the police found three men,
including Lewis, who matched the general descriptions
of the three bank robbers, along with money taken from
the bank. This beeline escape suggests that Lewis was
in cahoots with the others. Lewis never explains why
the robbers would come to Kenyatta’s house—whose
connection to the group was through Lewis—to seek
refuge. There, the police also found a gun and three sets
12                                              No. 08-1854

of clothes, matching descriptions of the clothes worn by
the robbers. Additionally, the police found a box of
vinyl gloves—like those used by the robbers—in the
silver car, along with a pair of gloves containing one of
the robber’s DNA. Add to this the broken GPS unit and
the evidence becomes very convincing. On top of this
circumstantial evidence, Lewis admitted that he scoped
out the bank prior to the robbery. Taking this evidence
in the light most favorable to the government, as we
must, we find that the government’s inadvertent with-
holding of impeaching evidence regarding Kenyatta’s
drug conviction did not prejudice Lewis.
 Accordingly, the judgment of the district court is AFFIRMED.




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