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United States v. Clark

United States Court of Appeals, Seventh Circuit

December 19, 2014

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
MILFORD J. CLARK, Defendant-Appellant

Argued April 15, 2014

Page 1109

Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 11-cr-151 -- Sarah Evans Barker, Judge.

For United States of America, Plaintiff - Appellee: Steven D. DeBrota, Attorney, Office of The United States Attorney, Indianapolis, IN.

For Milford J. Clark, Defendant - Appellant: Jonathan Steele, Attorney, Dentons U.S. Llp, Chicago, IL.

Before RIPPLE and WILLIAMS, Circuit Judges, and ST. EVE, District Judge.[*]

OPINION

Page 1110

Williams, Circuit Judge.

Milford Clark strolled into a credit union wearing a two-tone baseball hat and sunglasses, walked out, and got into his blue Ford Crown Victoria. Five days later, a man fitting Clark's description robbed a bank wearing a two-tone baseball hat and sunglasses and left in a blue Ford Crown Victoria. Authorities interviewed and ultimately arrested Clark for the robbery. Clark wanted to represent himself and the magistrate judge found that Clark waived his right to counsel for proceedings before that court. The district court considered the issue anew on a motion from the government and asked Clark questions about his decision to proceed pro se. Ultimately, Clark decided against self-representation. He was convicted, and now argues on appeal that the district court infringed on his Sixth Amendment right to proceed pro se because it improperly reconsidered an issue already decided by the magistrate judge. We reject this argument because the district court could analyze whether Clark's waiver was valid since the magistrate judge's ruling was limited to " this juncture" of the proceedings, namely Clark's initial appearance. Moreover, the addition of DNA evidence to the government's case gave the court reason to question whether Clark fully understood the perils of going pro se and the court properly alerted Clark about how that evidence changed the nature of the case. We also find the credit union evidence was properly admitted for a non-propensity purpose, to establish Clark's identity. Though we are troubled by the government's introduction of more evidence than necessary to show Clark's identity, including a video and witness testimony that were used to characterize Clark's actions as " casing" the credit union, any errors in introducing more than just a still photo and failing to weigh the probative and prejudicial values of the evidence on the record were harmless since Clark met the physical description of the robber and his DNA was found at the Bank. Therefore we affirm.

I. BACKGROUND

On April 27, 2010, a man robbed the Regions Bank in Indianapolis at gunpoint while wearing a two-tone hat, dark sunglasses, and a bandana covering the lower half of his face. He threw three plastic grocery bags at the teller and ordered him to fill the bags with money. The teller filled one, which the robber took and fled, leaving the other two behind. The robber was described as a " stockier" Caucasian male, approximately 5'9" between 40-50 years old. Surveillance video from the drive-thru showed a blue car drive away. Early the next morning, police found a blue Ford Crown Victoria less than half a mile from the Bank. An eyewitness confirmed that it was the same car she had seen around the Bank right before the robbery. Both the car and the plastic bags at the Bank were swabbed for DNA.

Five days earlier, Larry England visited a Harvesters Credit Union in Indianapolis, asked for a deposit slip, and left without conducting any business. A few minutes later, England's friend, Clark, got out of his blue Ford Crown Victoria and went into the same Harvesters. Clark, then fifty-six years old, is a Caucasian male who was wearing a T-shirt with sunglasses hanging off it and a two-tone cap. He asked for a deposit slip, was told the Harvesters did not use deposit slips, and left without conducting any business. Finding the acts troubling, Harvesters investigated and reported the incident to the Sheriff's Department.

The similarities between the Harvesters incident and the robbery led the Sheriff to Clark. Clark identified himself on the ...


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