UNITED STATES of America, Plaintiff-Appellee, v. Debra LOGGINS, Defendant-Appellant, 486 F.3d 977

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 statement 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. 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 purchased 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 codefendants 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 screaming 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 employee, 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. 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 discarded 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 codefendants 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 Ber-wyn 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, alternatively, to require them to invoke their Fifth Amendment 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 Log-gins’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’ imprisonment. Log-gins 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 district court questioned Love about his plea and his involvement in both robberies. Loggins moved to admit the statement of Love’s attorney 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.” Additionally, 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 corroborating circumstances. We review a district court’s evidentiary 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 declar-ant 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.” 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 [tjestimony 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 proceeding, 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 application 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, 93 S.Ct. 1038.

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, 93 S.Ct. 1038. 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 conversations with several of his friends but later repudiated 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, ruling 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, 93 S.Ct. 1038; Horton v. Litscher, 427 F.3d 498, 506 n. 13 (7th Cir.2005).

The Supreme Court found that the witnesses’ 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, 93 S.Ct. 1038. Here, the evidence lacks this exculpatory significance and the reliability necessary to support a Sixth Amendment violation. 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 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-incrimination in response to each question. Following the questioning, 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.1998); 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. 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 statements made by her co-defendants indicating that they used toy guns during the robbery. At trial, there was disputed testimony as to the description 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 used during the course of the robbery. 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. 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 ear and she was being actively pursued, 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 ÍS AFFIRMED. .

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.''