                            In the
 United States Court of Appeals
              For the Seventh Circuit
                         ____________

No. 06-1535
UNITED STATES OF AMERICA,
                                             Plaintiff-Appellee,
                               v.

DEBRA LOGGINS,
                                         Defendant-Appellant.
                         ____________
       Appeal from the United States District Court for the
         Northern District of Illinois, Eastern Division.
        No. 04 CR 537—Charles R. Norgle, Sr., Judge.
                         ____________
     ARGUED JANUARY 18, 2007—DECIDED MAY 9, 2007
                    ____________


 Before BAUER, MANION, and ROVNER, Circuit Judges.
  BAUER, Circuit Judge. A jury convicted Debra Loggins
of robbing a federal credit union in violation of 18 U.S.C.
§ 2113(a). The district court sentenced her to seventy-four
months’ incarceration. She appeals, claiming that the
district court erred in (1) barring admission of a state-
ment made by one of her co-defendants; (2) not requiring
her co-defendants to exercise their Fifth Amendment
privilege in the presence of the jury; and (3) denying her
motion for a new trial. We affirm.
2                                             No. 06-1535

                    I. Background
  On May 27, 2004, Loggins, Tyron Love, Nicole Reynolds,
and Mario Johnson drove to a Motel 6 in Harvey, Illinois.
According to Reynolds, before reaching the motel, they
stopped at a K-mart, where Loggins and Reynolds pur-
chased bandanas and toy guns. Reynolds testified that
later at the motel, Loggins removed a gun from her purse,
showed it to the other three, and instructed Johnson to
carry it the next day because he sounded like the most
convincing bank robber. Loggins denied being a party to
this exchange and claimed that she did not hear her co-
defendants discuss the planned robbery.
  The next morning, May 28, Loggins drove Love,
Reynolds, and Johnson to the Illiana Financial Credit
Union (“IFCU”) in Calumet City, Illinois. Loggins parked
the car in the credit union’s lot and remained in the
driver’s seat. Reynolds went into the credit union and
asked to use the bathroom. When she left the bathroom,
Johnson and Love entered the credit union and, with guns
drawn, took $7,290. Then, all three ran from the credit
union with Love carrying a bag. Loggins admitted that
at this point she knew that they had robbed the credit
union. When they jumped into the car, Love began scream-
ing at Loggins to drive away. Loggins obliged.
   As Loggins pulled away from the credit union, she nearly
collided with Pamela Cruz, a vigilant credit union em-
ployee, who was arriving for work. A moment later, a dye
pack exploded in the bag, and Cruz watched red smoke
fill Loggins’s car. Cruz promptly called 911 to report
what she suspected was a robbery. Love dropped the
bag from the car, and the four continued driving. Cruz
followed the car as it traveled away at a high rate of
speed down local streets and a frontage road along the
expressway before eventually turning into a condominium
complex. The car broke through the entrance gate of the
complex. At this point, Cruz stopped her pursuit.
No. 06-1535                                                3

  At the back of the condominium complex, Loggins
instructed everyone to get out of her car. Loggins retrieved
her purse from the trunk, while Love and Johnson dis-
carded their stained sweatshirts into the trunk. The four
walked away from the vehicle towards the front entrance
of the condominium. Shortly thereafter, several Calumet
police officers arrived and confronted them.
  Loggins informed the officers that she had a loaded
silver Smith & Wesson .38 revolver gun in her purse. The
officers inspected Loggins’s car, observing red dye stains
on the front passenger seat and scratches and scrapes on
the outside of the vehicle that were caused when the car
struck the entrance gate to the condominium complex. The
officers also recovered two toy guns from the passenger’s
seat and the back seat.
  At the police department, Loggins made written and
oral statements acknowledging that she had heard her co-
defendants plan a robbery on the eve of the IFCU robbery,
and she was aware that her co-defendants had intended
to rob the bank. In the statement, Loggins wrote, in part,
“I provided a ride to the bank for some of my friends
who had jokingly talked about getting some money.
I didn’t really believe that they were going to actually
rob the place until we arrived and they got out of the car
and proceeded to go into the bank.” According to Agent
Grodsinsky, Loggins also said that the gun in her purse
was hers and that she had carried it continuously since
purchasing it many years ago.
  Love, Johnson, and Reynolds pleaded guilty to two
counts of robbery: a prior robbery of the Fifth Third
Bank in Berwyn that occurred on May 22, 2004, and the
May 28, 2004 robbery of the IFCU in Calumet City—all in
violation of 18 U.S.C. § 2113(a). Loggins pleaded not guilty.
  Prior to Loggins’s trial, she filed a motion to compel the
testimony of her co-defendants Love and Johnson, and,
4                                             No. 06-1535

alternatively, to require them to invoke their Fifth Amend-
ment in the presence of the jury. Loggins also moved to
admit the statement of Love’s attorney at his plea hearing
that Loggins “was present” at the robbery “but didn’t
know what was about to happen.” The district court
denied both motions.
  At trial, Loggins contradicted the statements she made
shortly after the robbery by testifying that she had no
idea that her co-defendants were going to rob the IFCU.
She admitted that she knew her co-defendants had
robbed the IFCU upon their return to her car when she
saw the bag full of money. She also admitted to driving
them away from the IFCU at a high rate of speed. Loggins
contended that she had panicked and merely wanted to
get away.
  During the trial in-chief, the prosecution and defense
counsel elicited testimony that toy guns were used in the
commission of the robbery. During its rebuttal argument,
the prosecution asserted that Loggins’s .38 revolver was
used. Loggins’s objection was overruled by the district
court. The jury returned a guilty verdict, and the district
court sentenced Loggins to seventy-four months’ imprison-
ment. Loggins timely filed this appeal.


                     II. Discussion
A. Love’s Statement
  At Love’s plea hearing, the government asserted that
Loggins acted as a getaway driver during the robbery of
the IFCU. Love disagreed and his attorney contended that
Loggins “was present” at the robbery of the IFCU “but
didn’t know what was about to happen.” Only the dis-
trict court questioned Love about his plea and his in-
volvement in both robberies.
No. 06-1535                                              5

  Loggins moved to admit the statement of Love’s attor-
ney as a statement against interest under Federal Rule of
Evidence 804(b)(3), as former testimony under Federal
Rule of Evidence 804(b)(1), and as exculpatory evidence
under Chambers v. Mississippi, 410 U.S. 284, 93 S. Ct.
1038, 35 L. Ed. 2d 297 (1973). The district court denied
the motion, finding that the statement was unclear and
that “Love cannot testify as to what Loggins did or didn’t
know with respect to either of these robberies.” Addition-
ally, the court found there was no showing that the
statement was against the penal interest of the speaker,
that it was trustworthy, or that there were corroborat-
ing circumstances. We review a district court’s evid-
entiary rulings for an abuse of discretion. United States
v. Bonty, 383 F.3d 575, 579 (7th Cir. 2004).


   1. Statement Against Interest
  To introduce a hearsay statement under Federal Rule
of Evidence 804(b)(3), the proponent must establish that
(1) the declarant is unavailable as a witness, (2) the
statement was against the declarant’s penal interest
when made, and (3) corroborating circumstances clearly
suggest that the statement is trustworthy. Bonty, 383 F.3d
at 579. The district court found that Loggins could not
meet the second and third prongs of the test; we agree.
  Love’s attorney’s statement did not implicate him nor
could it subject him to criminal liability. See Bonty, 383
F.3d at 575 (holding that a statement that defendant had
nothing to do with the criminal events did not tend to
implicate the declarant and was not against the declarant’s
penal interest). Nor does a statement by an attorney as to
his client’s belief about another person’s state of mind
“clearly suggest that the statement is trustworthy.”
6                                              No. 06-1535

    2. Former Testimony
  Loggins next asserts that Love’s attorney’s statement
is former testimony. Federal Rule of Evidence 804(b)(1)
provides that, as an exception to the hearsay rule, former
testimony of an unavailable witness is admissible if it is
    [t]estimony given as a witness at another hearing of
    the same or a different proceeding, or in a deposition
    taken in compliance with law in the course of the same
    or another proceeding, if the party against whom the
    testimony is now offered, or, in a civil action or pro-
    ceeding, a predecessor in interest, had an opportunity
    and similar motive to develop the testimony by direct,
    cross, or redirect examination. Fed. R. Evid. 801(b)(1).
The district court found that the statement by Love’s
attorney did not qualify under this hearsay exception
because the government did not have the opportunity to
cross-examine. We agree.
  Loggins also challenges the exclusion of the testimony
based on her Sixth Amendment right to present a defense.
The Supreme Court has held the rigid application of state
evidentiary rules unconstitutional when such an applica-
tion infringes upon the right to present witnesses in
one’s own defense, particularly when that testimony is
critical to the defense’s theory of the case. Chambers, 410
U.S. at 302-03. However, the right to confront and to
cross-examine witnesses is not absolute and may, in
appropriate cases, bow to accommodate other legitimate
interests in the criminal trial process. Chambers, 410 U.S.
at 295.
  In Chambers, the defendant sought to introduce the
out-of-court statements of a man, Gable McDonald, who
declared that it was he, and not the defendant, who had
committed the murder at issue. McDonald made a sworn
confession and also admitted to the murder in private
No. 06-1535                                               7

conversations with several of his friends but later repudi-
ated his statements. As a result, the trial court prevented
the defense from calling McDonald as an adverse witness
and refused to allow the testimony of three witnesses to
whom McDonald admitted committing the murder, rul-
ing those statements to be hearsay. The Supreme Court
ruled that under the facts and circumstances of that
particular case, the mechanistic application of state
evidentiary rules, which prevented the defense from
introducing evidence regarding McDonald’s confession,
violated the defendant’s due process rights. Chambers, 410
U.S. at 302-03; Horton v. Litscher, 427 F.3d 498, 506 n.13
(7th Cir. 2005). The Supreme Court found that the wit-
nesses’ hearsay testimony was critical to the defendant’s
defense and noted that the statements were made “under
circumstances that provided considerable assurance of
their reliability” because there were multiple admissions
by another individual that he was the actual killer. Id.
at 300.
  Here, the evidence lacks this exculpatory significance
and the reliability necessary to support a Sixth Amend-
ment. The fact that “Loggins was present” at the robbery
is undisputed. That she “didn’t know what was about to
happen” has little exculpatory significance. Although it
could corroborate Loggins’s trial testimony that she did not
initially know about the robbery, nevertheless, as she
admits, she knew of the robbery when her co-defendants
came running from the credit union to her car. We find
that the district court did not abuse its discretion by
excluding Love’s statement.


B. Fifth Amendment Privilege
  Loggins next claims the district court erred by denying
her request that her co-defendants exercise their Fifth
Amendment privilege in the presence of the jury. Prior to
8                                               No. 06-1535

trial, Loggins subpoenaed Love and Johnson to testify on
her behalf. Loggins then moved to compel the testimony of
co-defendants Love and Johnson and, alternatively, to
require them to invoke their Fifth Amendment right
before the jury. The district court permitted Loggins to
question them at a hearing. Both Love and Johnson
invoked their Fifth Amendment right against self-incrimi-
nation in response to each question. Following the ques-
tioning, the district court denied Loggins’s motion to
compel their testimony and the alternative request to
require them to invoke their Fifth Amendment right
before the jury. The court found a reasonable basis for
the invocation of the privilege. We review a district court’s
denial of a defendant’s motion to compel a witness to
exercise his Fifth Amendment privilege in the presence of
the jury for an abuse of discretion. United States v.
Mabrook, 301 F.3d 503, 506 (7th Cir. 2002).
  Loggins argues that the jury should have been permitted
to draw an inference from her co-defendants’ invocation of
their right against self-incrimination, citing to United
States v. Hartmann, 958 F.2d 774, 789 (7th Cir. 1992).
Normally, it is improper for a jury to draw any inference
from a person’s exercise of his Fifth Amendment right
against self-incrimination. United States v. Taylor, 154
F.3d 675, 684 (7th Cir. 1997); Mabrook, 301 F.3d at 507.
“We have never found that it is permissible for a jury to
make an inference from the invocation of a witness’s
assertion of the Fifth Amendment and Hartmann only
references a First Circuit case stating that the jury
may make an inference from the assertion of the privilege
during cross-examination.” Mabrook, 301 F.3d at 507
(internal citations omitted). The district court did not
abuse its discretion.
No. 06-1535                                               9

C. Motion for a New Trial
   Lastly, Loggins challenges the district court’s denial of
her motion for a new trial because the government’s
rebuttal argument changed its theory of the case by
asserting that Loggins’s gun was used in the commission
of the offense rather than the toy guns. Although use of a
firearm was not an element of the charge, it suggests a
greater connection between the defendant and the crime
by showing that Loggins was a fully knowing participant
in the robbery. Because Loggins’s trial defense was that
she was unaware that her co-defendants were planning to
rob the credit union, she asserts that this prejudiced her
case. Based on earlier representations, Loggins asserted
that she reasonably expected that the government had
agreed with the defense that the toy guns were used in the
robbery. As a result, Loggins opted not to address the
issue in her own testimony, through expert testimony, or
in her cross-examination of the bank tellers. Additionally,
Loggins claims she would have sought to admit state-
ments made by her co-defendants indicating that they
used toy guns during the robbery.
  At trial, there was disputed testimony as to the descrip-
tion of the toy guns. At various times, the toy guns were
referred to as “silver with a brown handle” or “short and
green.” Loggins’s weapon was consistently referred to as
“very long,” “big,” and “silver.” Despite this descriptive
testimony, no witnesses were asked to identify which gun
was used in the robbery. All three guns and photos of
the toy guns, as they were found in the getaway car, were
introduced into evidence.
  We review the denial of a motion for a new trial for an
abuse of discretion. United States v. Childs, 447 F.3d 541,
544 (7th Cir. 2006). The charge against Loggins did not
require that the government prove that a real weapon was
10                                                 No. 06-1535

used during the course of the robbery.1 Whether the gun
was real or a toy was irrelevant because the element of the
crime is whether force, violence, or intimidation was used
to commit the robbery. Moreover, the existence of the
gun and its relationship to Loggins were already part of
the evidence. Thus, the prosecutor’s comments did not
implicate the core issue of Loggins’s guilt or innocence.
Instead, this argument suggested that Loggins had a
larger and more cognizant role in the robbery. With or
without the arguments, the elements of the charged
crime would still be satisfied.
  Nor did the prosecution misstate the admitted evidence.
The evidence supported the prosecution’s argument that
the real gun was used during the commission of the
offense. Reynolds testified that Loggins helped plan the
robbery by showing the gun to Johnson and instructing
him to carry it. Moreover, Agent Grodsinsky testified that
Loggins admitted that she was aware the robbery would
take place. In fact, Loggins invited the prosecution’s
comment on which gun was actually used. In her closing,
Loggins stressed her theory that Reynolds lied because
the toy gun was used during the robbery rather than
Loggins’s revolver. However, an equally permissible
inference from the admitted evidence was that Loggins
revolver was used.


1
   The jury was instructed: “To sustain the charge of a bank
robbery, the government must prove the following beyond a
reasonable doubt: First, the defendant took from the person or
presence of another money belonging to or in the care, custody,
control, management or possession of the Illiana Financial Credit
Union; Second, at the time charged in the indictment the
Illiana Financial Credit Union had its deposits insured by the
National Credit Union Administration; and Third, the defendant
acted to take such money by force and violence, or by means of
intimidation.”
No. 06-1535                                             11

  The evidence supporting Loggins’s conviction was
overwhelming. Through her own admission, Loggins stated
that she knew her co-defendants had robbed the credit
union when they came running from the credit union and
jumped into her car. Irrespective of her prior knowledge,
Loggins knowingly drove away from the credit union as a
full participant in the robbery. Although the dye pack
exploded inside her car and she was being actively pur-
sued, Loggins drove down local streets and a frontage road
along the expressway before plowing through the gate of
a condominium complex. It is well established that escape
is considered part of a robbery. United States v. Andrews,
442 F.3d 996, 1002 (7th Cir. 2006); United States v. Smith,
415 F.3d 682, 689 (7th Cir. 2005).
  Our examination of the record as a whole leads us to
conclude that Loggins was not denied due process. Any
prejudicial impact of the prosecution’s rebuttal argument
was insignificant in light of the tremendous weight of the
evidence against her. Therefore, the defendant was not
denied due process, and the district court did not err in
refusing to grant Loggins’s motion for a new trial.


                    III. Conclusion
 Accordingly, the judgment of the district court is
AFFIRMED.




  ROVNER, Circuit Judge, concurring. I join the court’s
opinion. I write separately to express my concern about
the government’s last-minute change in theory as to
which gun was used to commit the robbery.
12                                                   No. 06-1535

  Loggins’ theory of defense was that she did not know in
advance of her co-defendants’ plan to rob the credit union
and that she drove the car away from the credit union in
a panic. Her odds of prevailing on this defense were not
especially strong, given that participating in an escape
from a robbery is considered participating in the robbery
itself, see United States v. Smith, 415 F.3d 682, 689 (7th
Cir. 2005) (coll. cases), vacated & remanded on other
grounds, — U.S. —, 126 S. Ct. 2859 (2006), and by
Loggins’ own admission she realized what her co-defen-
dants had done when they ran out of the credit union and
jumped into the car with a bag full of money. R. 156-3 at
408, 471. Still, there is an intuitive difference between
someone who knows about a robbery plan ahead of time
and volunteers for the role of getaway driver and someone
who remains in the dark until her co-defendants dash out
of the bank, pile into the car, and scream at her to drive
away. A sympathetic jury confronted with the second
scenario might agree that the driver’s heat-of-the-moment
decision to step on the gas and get the heck out of Dodge
was not a deliberate and culpable decision to aid the
robbery.1
  Use of a real gun was not an element of the offense, as
my colleagues point out, but as a practical matter it was
quite relevant to Loggins’ defense. If it was Loggins’ Smith



1
   Getaway drivers occasionally do succeed on such defenses. See,
e.g., Briefs, Stuart: 20-year-old cleared of getaway charges, Stuart
(Fla.) News, June 16, 2006, at Local News, 2006 WLNR
10585962; Madelaine Vitale, Split Verdict in Shootout Killing
of Atlantic City Bar Manager, Press of Atlantic City (N.J.), Feb.
25, 2006, at C1, 2006 WLNR 3340080; Sara Eaton, Alleged *01
getaway driver cleared; Wendy’s employee was shot during pair
of robberies, Fort Wayne (Ind.) Journal Gazette, at 1, 2004 WLNR
15243884.
No. 06-1535                                             13

& Wesson that Johnson held in his hand during the
robbery, then it was a more obvious inference that Loggins
was in on the plan from the start; indeed, it would con-
firm Reynolds’ testimony that Loggins had participated
in the discussion of the robbery the night before and had
advised Johnson to use her gun in the robbery, see R. 156-1
at 108, 121. This would in turn rule out the possibility
that Loggins found out about the robbery only after the
fact and drove her cohorts away from the scene of the
crime in a panic. Ante at 9.
   I readily agree with my colleagues that the evidence
before the jury supported the prosecutor’s contention that
Loggins’ gun was used to commit the robbery. Ante at 10.
Although none of the witnesses to the robbery were
asked to identity the gun they saw in co-defendant John-
son’s hand, in addition to Reynolds’ testimony that Loggins
had shown her revolver to Johnson and told him to carry
it, there was testimony from the credit union tellers
describing the gun Johnson was carrying as being big
and silver. Having looked at the guns myself, I am satis-
fied that only Loggins’ Smith & Wesson truly meets that
description; the plastic toy guns are smaller and have a
distinctive blue-green cast to them (although they do have
a somewhat metallic sheen).
  What is troubling about the government’s conten-
tion—voiced for the first time in its rebuttal argument—
that it was Loggins’ gun that was used, is that this
was wholly contrary to the position that the government
had taken—repeatedly, on the record, and in the presence
of the district judge—right up to the eve of trial. When
Love pleaded guilty to the May 28 robbery on May 3, 2005,
four months before Loggins’ trial, the Assistant United
States Attorney (“AUSA”) represented to the court that
the government’s evidence would show that “[d]uring the
course of the robbery, [c]o-[d]efendant Johnson pointed a
toy handgun at bank employees and customers while
14                                                 No. 06-1535

instructing them to put their hands up.” R. 170 at 13-14.
The district judge took note of the prosecutor’s descrip-
tion of the gun as a toy and asked her what evidence she
had to support that description. Id. at 17. The AUSA
informed the court that two toy guns had been recovered
from inside the getaway car, “[a]nd when compared to the
bank surveillance photos and what [the] tellers described,
those seemed to match the guns that were used in both
robberies. And we believe it was a toy gun used in both
the May 22nd robbery and the May 28th robbery.” Id. at
18. The government made the same representation in its
proffer of the evidence against Johnson (who pleaded
guilty the same day as Love): the AUSA indicated that
“[d]uring the course of the robbery, . . . [d]efendant John-
son . . . pointed a toy handgun at bank employees and
customers while instructing them to put their hands up.”
Id. at 50.2 Love and Johnson themselves specifically
represented to the court in their plea colloquies that the
guns they had carried were toy guns (although Love could
not recall what type of gun Johnson had carried). Id. at 21-
22, 52. On September 1, 2005, just days before the start
of Loggins’ trial, co-defendant Reynolds pleaded guilty.
Again the government, in outlining its evidence, indicated
that “during the course of the robbery, co-defendant
Johnson pointed a toy handgun at bank employees and
customers while instructing them to put their hands up.”
R. 134 App. B at 4. Finally, on September 6, 2005, when
the government asked for (and received) a delay in the
start of Loggins’ trial because neither the toy guns nor


2
  The government made the same representation in the official
version of the offense that it submitted to the probation office
on May 19, 2005, for use in preparation of Johnson’s pre-sentence
report. R. 134 App. C at 4 (“During the course of the robbery,
defendant [Johnson] pointed a toy handgun at bank employees
and customers while instructing them to put their hands up.”).
No. 06-1535                                             15

Loggins’ Smith & Wesson revolver could be located in the
evidence locker, the AUSA specifically advised the court
that the toy guns looked very much like the real gun
(Loggins’ revolver). R. 173 at 5. “If you laid them side by
side without picking them up, they would look almost
identical in appearance.” Id. Again the court expressed
interest in which of the guns was used to commit the
robbery, and although on this occasion the government
did not repeat its earlier refrain that Johnson had pointed
a toy gun at the tellers and customers of the credit re-
union, it did disavow any intent to show that Loggins’ gun
had been used to commit the robbery:
    THE COURT: Once this issue of the guns is resolved,
    then what inferences is the Court to draw with respect
    to the three guns, two apparently toy guns and one
    real gun?
    AUSA: . . . The inference regarding the guns would
    be that there were three guns used. We can’t tell the
    jury which guns were used inside of the May 28
    robbery. All we can say is that three guns were found,
    and that the defendant had the only real gun on her
    person.
Id. at 25.
  What the record does not reflect but what we have been
told is that once the FBI tracked down the Smith &
Wesson and the prosecutor apparently got her first side-
by-side look at the three guns just a day or two before the
trial commenced, she concluded that the toy guns were
readily distinguishable from the real gun and that it
likely was Loggins’ gun—the Smith & Wesson—that
Johnson had used to carry out the May 28 robbery. We do
not know whether the tellers themselves would have been
able to identify the Smith & Wesson as the gun that
Johnson had pointed at them, since none of them was
asked to do so at trial. (And I would add that the one
16                                             No. 06-1535

perspective from which it is difficult to distinguish the
real gun from the toy guns is when one looks directly
into the barrels of the guns—i.e., when they are pointed
directly at an individual.) But in any event, the govern-
ment changed its theory as to which gun Johnson had
used, and as I have already acknowledged, the notion
that Johnson had carried Loggins’ gun into the bank
was a plausible one based on the trial evidence, which
included the guns themselves, the tellers’ testimony
about what the gun that Johnson carried looked like, and
Reynolds’ testimony that Loggins had urged Johnson to
carry her gun with him. I agree with my colleagues
that the government was entitled to make this argument
to the jury. See ante at 10.
  What I do not think the government was within its
rights to do, given the position it had repeatedly taken on
the guns prior to trial, was keep quiet about its change of
theory until the evidence was closed and the defense
counsel had given his closing argument. A defense by
its nature is reactive; because it is the government that
bears the burden of proof, the defense must respond to
what evidence the prosecution puts on and what inferences
it asks the jury to draw from that evidence. In the ab-
stract, of course, the prosecutor may have had no obliga-
tion to share with the court and with the defense her
thoughts as to which of the guns Johnson had used: as
discussed, this was much more material to the defense
case than it was to the government’s. But not only had
the government previewed its theory regarding the guns
before trial, it had in the course of three separate change-
of-plea hearings repeatedly represented to the court as
fact that Johnson had used a toy gun—not Loggins’ Smith
& Wesson—in the course of the robbery, and as late as
a few days before Loggins’ trial was representing to the
court that it could not prove which of the guns was used
inside the credit union. Nothing new or unexpected
No. 06-1535                                             17

emerged at trial in regard to the guns: no witness identi-
fied the Smith & Wesson as the gun Johnson had pointed
at the tellers and customers of the credit union, for
example. Under these circumstances, the defense had no
reason to anticipate the about-face that the government
performed in its final closing argument.
  The government suggests that the defense brought
this on itself when Loggins’ counsel argued in his own
closing statement that Johnson had used a toy gun rather
than Loggins’ Smith & Wesson to commit the robbery, thus
“mak[ing] . . . an issue” of which gun was used. Gov’t Br.
at 39; see also ante at 10. This is revisionist history. The
government gift-wrapped this argument for the defense
when its own counsel repeatedly represented to the
court in advance of trial that Johnson had used a toy
gun and that it could not prove otherwise. That Loggins’
attorney would take up that refrain could have sur-
prised no one: it was part and parcel of the defense theory
that Loggins took no part in planning the robbery and had
no foreknowledge of it—a theory that was consistently
advanced throughout the case. See, e.g., R. 173 at 10-11
(Loggins’ counsel outlines theory of defense at hearing
conducted the week before trial commenced). The problem
here was one of the government’s making, not Loggins’.
  By keeping its change of mind about the guns under
wraps until its final closing argument, the government
effectively deprived Loggins of the chance to respond. Just
as there was evidence to support the government’s
eleventh-hour contention that Johnson had used Loggins’
gun, there was evidence to support Loggins’ contrary
theory that he had not. During Johnson’s plea colloquy,
for example, Johnson had read aloud (and swore to the
truth of) a signed written statement concerning the
May 28 robbery in which he stated that he “displayed a toy
gun” during the robbery. R. 170 at 52. Moreover, an FBI
forensic expert had prepared a report indicating that, on
18                                            No. 06-1535

review of credit union surveillance photographs, he was
unable to determine whether the weapon Johnson held
in his hand during the robbery was Loggins’ revolver or
one of the toy guns (because the photographs were insuf-
ficiently detailed). R. 134 App. D. Finally, the fact that
the prosecutor did not ask any of the tellers whether
they could identify which of the guns Johnson had used
suggests it is at least possible that they too might be
unable to do so. (Although the differences between the
guns seemed rather obvious to me within the sedate
confines of my chambers, I can readily appreciate how a
witness who had only a moment’s glimpse of the gun under
highly stressful conditions might be less able to state
with confidence which of the guns he or she saw in John-
son’s hand.) Of course, Loggins could have sought to
introduce this evidence during trial; nothing precluded
her from doing that. But she had no reason to do so
after the government effectively took that issue off the
table by conceding that Johnson had used a toy gun and
professing its inability to prove that Johnson had used
Loggins’ gun. By the time the prosecutor finally put that
issue back on the table, the evidence was closed and the
defense’s opportunity to speak to the jury had come and
gone.
  As a former prosecutor and district judge, I know that
in preparation for trial, opposing parties and judges alike
routinely rely on the representations that the parties’
counsel make as to what issues and theories they will and
will not pursue. This is not to say that a party is forever
after bound by whatever pre-trial positions its counsel
might take. Things rarely proceed according to plan: new
evidence comes to light, witnesses give unexpected testi-
mony, mistakes become apparent, strategies change.
Although the government’s counsel can perhaps be faulted
for not arranging to see the guns further in advance of
trial than she did (we are told that Loggins’ counsel, by
No. 06-1535                                              19

contrast, had viewed the guns months earlier), once she
examined the guns and realized that the weapon wit-
nesses had described as large and silver most likely
was Loggins’ Smith & Wesson, I believe she was entitled
to argue that theory. But given the government’s prior on-
the-record assertions that Johnson had used a toy gun,
I believe the AUSA was obligated to disclose her change of
thought to both the court and the defense. Not to do so,
and to reserve that announcement for the last moments
of trial, was a serious error in judgment. Trial by ambush
has absolutely nothing to recommend itself to the judi-
cial process.
  The question before us, however, is whether Loggins
is entitled to be re-tried, and given the substantial defer-
ence we owe to the district court on this question, e.g.,
United States v. Woolfolk, 197 F.3d 900, 904-05 (7th Cir.
1999), I cannot say that it was an abuse of discretion to
deny Loggins’ Rule 33 motion for a new trial. The govern-
ment’s rebuttal argument, although a surprise to the
defense, was consistent with the appearance of the guns
and with the tellers’ descriptions of the gun that Johnson
had used. My sense is that the jury would have drawn
the same inference on its own even if the government
had not made the argument or if the defense, not having
been lulled into a sense of false security by the govern-
ment’s pre-trial statements on this subject, had intro-
duced evidence suggesting that Johnson used (or may
have used) a toy gun. Moreover, apart from Loggins’ gun,
there was substantial evidence indicating that Loggins
knew ahead of time that her co-defendants were planning
to rob the credit union. Reynolds so testified, of course.
Perhaps more importantly FBI Special Agent Gustavo
Grodsinsky testified that following her arrest, Loggins
admitted to him that she had overheard Johnson and Love
discussing the robbery the night before (although she
thought this was just idle chatter), R. 156-3 at 502, that on
20                                             No. 06-1535

the morning of the robbery Johnson and Love had awak-
ened her and told her “they were going to get the money,”
id. at 503, and that she continued to think they were
joking “except for when they told her to get dressed because
she[ ] [was] the only person that ha[d] a vehicle and they
needed her to drive,” id. (emphasis mine). Loggins told
Grodsinsky that after getting dressed, she drove her co-
defendants around town looking at different banks until
they settled on the Illiana Financial Credit Union, which
Johnson and Love said “looked like a good one.” Id. at 504.
Moreover, Loggins’ own written statement (which
Grodsinsky read aloud to the jury), although insisting that
she had at first believed her co-defendants’ talk of a
robbery to be a joke, acknowledged that once her co-
defendants got out of the car and proceeded into the bank,
she realized they were not joking. R. 156-4 at 537. At the
very least, this evidence suggests that Loggins did not
remain in the dark about the robbery as long as her
defense posited, and that her decision to drive the getaway
car was not truly made in the panic of the chaotic moments
after the robbery. Against that backdrop, I am not con-
vinced that the government’s unexpected argument that
Loggins’ gun was used to commit the robbery ultimately
made a difference to the outcome of the trial or otherwise
affected Loggins’ substantial rights. See generally United
States v. Kuzniar, 881 F.2d 466, 470 (7th Cir. 1989);
United States v. Reed, 875 F.2d 107, 113 (7th Cir. 1989)
(quoting United States v. Martinez, 763 F.2d 1297, 1312-13
(11th Cir. 1985)).
  With these additional observations, I join the court’s
opinion and judgment.
No. 06-1535                                        21

A true Copy:
      Teste:

                   ________________________________
                   Clerk of the United States Court of
                     Appeals for the Seventh Circuit




               USCA-02-C-0072—5-9-07
