The 7th Circuit Court of Appeals reversed three men’s attempted robbery convictions for lack of evidence but affirmed their remaining convictions and ordered them resentenced.
In 2015, Duprece Jett, Damion McKissick and Earl Walker were charged with conspiracy and attempted bank robbery after committing a string of armed robberies over a four-month period while disguised in 1970s-themed apparel.
Jett and McKissick robbed an Indianapolis Advance America Check Cashing Service as well as two Indiana Members Credit Union branches in Indianapolis and Avon. Officers suspected that a fourth robbery was imminent on December 12, 2015, and apprehended Walker and McKissick after a car chase resulted in them crashing in a ditch.
Walker was sentenced to six years in prison, three years supervised upon release and ordered to pay $4,167.23 in restitution. Both Jett and McKissick were sentenced to 24.4 years in prison, received a three-year supervised release and ordered to pay restitution. McKissick was ordered to pay $137,427.03.
On appeal, Jett, McKissick, and Walker raised several challenges to purported errors in the district court, insufficient evidence, jury instructions and the admission of certain expert and lay testimony.
First, the defendants argued there was insufficient evidence to convict them of attempted robbery on the day of their apprehension by police on December 12. The 7th Circuit agreed and ordered the men acquitted of that charge, finding that “law enforcement arrested McKissick and Walker well before they had an opportunity to approach the Credit Union they planned to rob, and Jett never neared the Credit Union that day.”
The 7th Circuit remanded for each defendant to be resentenced accordingly, but affirmed their conspiracy convictions. It found the district court’s decision not to instruct the jury on an overt-act requirement was proper and that no reversible error was found in the admission of certain expert evidence and lay testimony.
“Nor was there cumulative error. The evidence we have identified as sufficiently and persuasively incriminating — the footage, the cell-phone data, the DNA — would be admitted even if each of the defendants’ arguments were correct,” Circuit Judge Amy St. Eve wrote for the court.
In an argument unique to Walker, he contended among other things that the reversal of his attempted robbery conviction requires reversal of his conspiracy conviction. Specifically, Walker argued that without the attempted robbery conviction, the conspiracy conviction is “gutted.”“That argument reflects a misunderstanding of what is required to prove an inchoate offense,” St. Eve concluded in USA v. Duprece Jett, Earl Walker and Damion McKissick, 17-2051, 17-2052 and 17-2060.