United States v. Pierre Robinson

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In the

    United States Court of Appeals
                For the Seventh Circuit
                    ____________________
Nos. 23-1498 & 23-2171
UNITED STATES OF AMERICA,
                                                   Plaintiff-Appellee,
                                 v.

PIERRE ROBINSON and DERRICK SWANSON,
                                   Defendants-Appellants.
                    ____________________

        Appeals from the United States District Court for the
          Northern District of Illinois, Eastern Division.
           No. 18-cr-00758 — John J. Tharp, Jr., Judge.
                    ____________________

     ARGUED FEBRUARY 27, 2025 — DECIDED JULY 9, 2025
                ____________________

   Before ST. EVE, LEE, and MALDONADO, Circuit Judges.
    ST. EVE, Circuit Judge. Pierre Robinson and Derrick Swan-
son were each charged with murdering an opposing gang
member to advance their standing in Evans Mob, a street gang
in Chicago’s Chatham neighborhood. While Swanson entered
a cooperation agreement with the government and pleaded
guilty, Robinson chose to proceed to trial.
2                                       Nos. 23-1498 & 23-2171

    At Robinson’s trial, the government called Robinson’s
cousin Anise to identify him as the man who shot and killed
the victim, Glenn Houston, Jr. Anise had previously identified
Robinson as the shooter in a recorded statement to Chicago
police and before a grand jury. But she was unable to do so at
trial, professing that a recent medical issue rendered her una-
ble to recognize Robinson or remember her past identifica-
tions of him. In response, the government moved to admit
both Anise’s statement to police and her grand jury testimony
as a declarant witness’s prior inconsistent statements. The dis-
trict court granted its motion. After a four-day trial, the jury
convicted Robinson.
    Robinson and Swanson both appeal. Robinson contends
that the admission of Anise’s testimonial hearsay statements
violated his rights under the Confrontation Clause. He also
argues that his trial counsel rendered ineffective assistance.
Swanson challenges only his sentence, asserting that a condi-
tion of his supervised release conflicts with his sentence as
orally pronounced. Finding no merit in Robinson or Swan-
son’s challenges, we affirm.
                        I. Background
   Pierre Robinson and Derrick Swanson are members of Ev-
ans Mob, a street gang within the Chatham neighborhood of
Chicago. Evans Mob plagued the 79th Street community with
drugs and violence—selling narcotics, committing robberies,
and murdering opposing gang members. Among the gang’s
many crimes are two murders at the heart of this case.
A. The Murders of Glenn Houston, Jr. and Anthony Carter
  Glenn Houston, Jr. was murdered on December 23, 2014,
while shopping at a local grocery store. A surveillance camera
Nos. 23-1498 & 23-2171                                          3

in the store captured the murder. The footage shows the
shooter, his shirt pulled up over his face, entering the store. It
tracks him as he strolls by the frozen section and briefly low-
ers his shirt. And it records him as he raises a revolver, shoots
Houston, Jr., and flees the scene.
    No one present at the time of the murder was able to iden-
tify Houston, Jr.’s shooter. But two weeks later, an unexpected
informant came forward—Robinson’s cousin, Anise. She had
fallen out with Robinson several years prior and was a friend
of Houston Jr.’s older sister. She was also a former cashier at
the grocery store. In a recorded interview, Anise told Chicago
police and a Cook County prosecutor that she had viewed the
surveillance footage and recognized Robinson as the man
who shot Houston, Jr. Anise repeated her identification before
a grand jury in 2018 and testified that her recorded statement
to police was true and correct. She also authenticated a DVD
of the statement, which the government played for the grand
jury. Anise’s sisters, Ciara and Regina, similarly identified
Robinson as the shooter before the grand jury.
    Meanwhile, law enforcement investigated a second crime
linked to Evans Mob: the murder of Anthony Carter outside a
Chatham gas station. Quick detective work turned up witness
testimony, surveillance footage, shell casings, and text mes-
sages showing that Derrick Swanson had shot and killed
Carter in retaliation for Carter’s threats against another mem-
ber of Evans Mob.
   In April of 2019, the grand jury returned a superseding in-
dictment charging Robinson and Swanson each with one
count of murder in aid of racketeering, in violation of
18
U.S.C. § 1959
(a)(1). The indictment alleged that Evans Mob
was a criminal enterprise and that Robinson and Swanson
4                                      Nos. 23-1498 & 23-2171

had murdered to maintain or advance their standing in the
gang. Facing a mandatory minimum sentence of life in prison,
Swanson elected to enter a cooperation plea agreement with
the government. Robinson proceeded to trial.
B. Robinson’s Trial
    As the government prepared for Robinson’s August 2022
trial, it reached out to his cousin Anise to secure her testi-
mony. But circumstances had changed for Anise in the inter-
vening four years. She informed prosecutors that after the
medically complicated birth of her daughter, she suffered
from memory loss. She could not recognize Robinson nor re-
member her prior identifications of him as the shooter in the
surveillance footage.
    The government nevertheless subpoenaed Anise’s testi-
mony and filed a pre-trial motion requesting the court admit
her grand jury statement and recorded police interview as
prior inconsistent statements exempted from the rule against
hearsay. Robinson objected, contending that Anise’s memory
loss would deprive him of the opportunity to cross-examine
her on her identifications of him. The district court overruled
the objection and admitted Anise’s testimony. It held that her
prior statements were exempt from the rule against hearsay
under Federal Rule of Evidence 801(d)(1)(A) and were not
barred by the Confrontation Clause because Robinson would
have an adequate opportunity to cross-examine her.
   When Anise took the stand, she testified that she suffered
from partial memory loss and had no memories of Robinson
prior to trial. She was nonetheless able to verify her signature
on exhibits presented to the grand jury, including the DVD of
her statement to Chicago police. With the requisite
Nos. 23-1498 & 23-2171                                                   5

foundation laid, the government introduced Anise’s grand
jury testimony adopting her statement to police. It then
played the recorded police interview where Anise identified
Robinson as the shooter for the jury.
    On cross-examination, Robinson questioned Anise on
whether she was biased against him, asking about her close
friendship with Houston, Jr.’s sister, her keen interest in the
surveillance footage, and her own gang affiliation. Anise con-
firmed the friendship but denied that she had ever been in-
volved in a gang. Robinson also probed Anise’s memory, ver-
ifying that she could not remember reviewing the surveil-
lance footage, making a statement to Chicago police, or testi-
fying before the grand jury. Robinson forwent any argument
that Anise’s memory loss was feigned, however.
    The government’s case did not begin and end with Anise.
It also called Swanson and Ciara to the stand, who both iden-
tified Robinson as the shooter in the surveillance video. 1
Swanson further testified to the internal dynamics of Evans
Mob and told the jury that Robinson had confessed to him
that he had murdered Houston, Jr. The government also en-
tered into evidence inculpatory social media posts from Rob-
inson’s and Swanson’s accounts. In one post, published a
mere forty minutes prior to Houston, Jr.’s murder, Robinson
memorialized a fallen Evans Mob member and promised to
retaliate in his honor. Another, posted about a year after the


    1 The government called Regina to testify, too, but she became upset

when the government played the surveillance video, telling the jury “I
can’t watch this.” Upon further questioning, she recanted her earlier iden-
tification of Robinson, testifying that she told the grand jury “what I
thought they wanted me to say.”
6                                        Nos. 23-1498 & 23-2171

murder and captioned “#BackdownMemoryLane No Opps
Just ����”, depicted Robinson promoting his mem-
bership in Evans Mob in front of the grocery store where Hou-
ston, Jr. was killed. Still a third video featured Robinson point-
ing a revolver at the camera and bragging that the govern-
ment had “no face” and thus “no case” against him.
   After two hours of deliberation, the jury returned a guilty
verdict. The court sentenced Robinson to life in prison.
C. Swanson’s Sentencing
   Following Robinson’s trial, the district court sentenced
Swanson to a below-mandatory-minimum sentence of thirty
years of imprisonment and five years of supervised release.
The court then confirmed that Swanson had no objections to
the probation department’s proposed release conditions. His
counsel replied:
    No Judge. I mean, one that I have considered bringing
    up and different judges have different views on it is the
    probation officer being able to come to my client’s
    place of employment as a place to–
The court interjected, ruling “I will – on that what I’ll interpret
as an objection, I’ll grant that objection and that will not be
ordered.” Robinson subsequently waived his right to have the
court read and explain his release conditions.
    In its written judgment of conviction, the court did not or-
der Swanson to “permit a probation officer to visit [him] at
any reasonable time … at work” (“Model Condition 16”). But
it did impose a condition that requires Swanson to “submit
[his] person, property, house, … or office, to a search con-
ducted by a United States Probation Officer(s)” upon
Nos. 23-1498 & 23-2171                                          7

reasonable suspicion that he has violated a term of his super-
vised release (“Model Condition 23”).
                         II. Discussion
    In this appeal, Robinson asserts that the admission of An-
ise’s testimony violated his rights under the Confrontation
Clause. He also alleges that his trial counsel rendered ineffec-
tive assistance by failing to vigorously dispute Anise’s testi-
mony. Swanson challenges a single term of his supervised re-
lease, contending that it is inconsistent with his sentence as
orally pronounced.
A. Robinson’s Confrontation Clause Claim
    The Sixth Amendment’s Confrontation Clause provides
that “[i]n all criminal prosecutions, the accused shall enjoy the
right … to be confronted with the witnesses against him.” U.S.
Const. amend. VI. At the heart of the confrontation right is
cross-examination: “testing the recollection and sifting the
conscience of the witness” as he stands face-to-face with the
jury. Mattox v. United States,
156 U.S. 237
, 242–43 (1895); see
also Kentucky v. Stincer,
482 U.S. 730
, 737 n.8 (1987) (describing
“[o]ne noted commentator[’s ]” view that the “main purpose
of confrontation is to secure for the opponent the opportunity
of cross examination” (internal quotation marks omitted)).
    Robinson submits that admission of Anise’s prior state-
ments violated his rights under the Confrontation Clause be-
cause her memory loss was both pervasive and genuine, so he
lacked a “meaningful” opportunity to cross-examine her. We
review his Confrontation Clause challenge de novo. United
States v. Norwood,
982 F.3d 1032
, 1042 (7th Cir. 2020).
   The Confrontation Clause is generally satisfied when a
criminal defendant enjoys “a full and fair opportunity to
8                                        Nos. 23-1498 & 23-2171

probe and expose” infirmities in an adverse witness’s testi-
mony. Delaware v. Fensterer,
474 U.S. 15, 22
(1985) (per cu-
riam); see also Crawford v. Washington,
541 U.S. 36
, 59 n.9 (2004)
(requiring testimonial hearsay declarants be “present at trial
to defend or explain” their statements). So where a defendant
has the opportunity to “impugn” a witness’s beliefs during
cross-examination—for example, by calling the jury’s atten-
tion to defects in the witness’s sincerity, memory, narration,
or perception—the Clause will not bar admission of that wit-
ness’s out-of-court statements. United States v. Owens,
484 U.S.
554
, 559–60 (1988); see also United States v. Keeter,
130 F.3d 297,
302
(7th Cir. 1997) (finding the Confrontation Clause satisfied
“when the witness must look the accused in the eye in court
[and] shortcomings in the declarant’s memory may be made
known to the jury”).
    As the Supreme Court and we have repeatedly held, a wit-
ness’s memory loss does not invariably deprive a defendant
of his rights under the Confrontation Clause. See, e.g., Owens,
484 U.S. at 560
; United States v. Shaffers,
22 F.4th 655
, 660–61
(7th Cir. 2022); Keeter,
130 F.3d at 302
. After all, the confronta-
tion right does not guarantee “cross-examination that is effec-
tive in whatever way, and to whatever extent, the defense
might wish.” Owens,
484 U.S. at 559
. And where a witness’s
testimony is “marred by forgetfulness, confusion, or evasion”
a defendant may nevertheless have an adequate opportunity
to probe the witness’s explanations and attack her credibility
before the jury. Fensterer,
474 U.S. at 22
.
   Here, despite Anise’s significant (and ostensibly genuine)
memory loss, Robinson had the opportunity to challenge her
credibility before the jury—and he actually did so. On cross-
examination, he impugned Anise’s sincerity, eliciting
Nos. 23-1498 & 23-2171                                         9

responses to impeachment questions about her gang affilia-
tion, close relationship with Houston, Jr.’s sister, and unusual
interest in the surveillance footage. Robinson also drew the
jury’s attention to Anise’s memory problems, confirming that
she could not remember reviewing the surveillance footage or
identifying Robinson. And while Robinson did not challenge
Anise’s perception by questioning her about her eyesight and
ability to identify him in a video he decried as “blurry” and
“dark” in closing argument, he could have.
    In short, Robinson had the opportunity to cross-examine
Anise and wield “realistic weapons” to challenge her credibil-
ity. See Owens,
484 U.S. at 560
. We therefore hold that admis-
sion of her testimonial hearsay statements did not violate the
Confrontation Clause.
B. Robinson’s Ineffective Assistance of Counsel Claim
   The Sixth Amendment guarantees a criminal defendant
“the right … to have Assistance of Counsel for his defense.”
U.S. Const. amend. VI. Robinson asserts that his trial attor-
neys rendered constitutionally deficient assistance, see Strick-
land v. Washington,
466 U.S. 668
(1984), by failing to vigorously
dispute Anise’s testimony and out-of-court statements.
    Before reaching the merits of Robinson’s claim, we under-
score the risk he assumes by raising it on direct appeal. We
may adjudicate an ineffective-assistance claim only once; a
defendant who pursues his claim on direct appeal may not
reassert it on collateral review. United States v. Onamuti,
983
F.3d 892
, 895 (7th Cir. 2020). And as we have repeatedly
warned, collateral review is almost invariably a better forum
for ineffective-assistance claims. See United States v. Cates,
950
F.3d 453
, 456–57 (7th Cir. 2020) (collecting cases).
10                                             Nos. 23-1498 & 23-2171

   To prevail on an ineffective-assistance-of-counsel claim, a
defendant must demonstrate that his counsel’s conduct fell
“below an objective standard of reasonableness.” Strickland,
466 U.S. at 688
.2 Yet the reasonableness of an attorney’s con-
duct generally turns on what she knew, what she should have
known, and why she acted as she did—facts unlikely to be
found within the record on direct appeal. See United States v.
Hise,
65 F.4th 905
, 909 (7th Cir. 2023).
    Adding to a defendant’s burden, Strickland’s presumption
of attorney competence applies with greatest force on direct
review. “When the only record on which a claim of ineffective
assistance is based is the trial record,” we must give “every
indulgence … to the possibility that a seeming lapse or error
by defense counsel was in fact a tactical move, flawed only in
hindsight.” United States v. Taglia,
922 F.2d 413
, 417–18 (7th
Cir. 1991).
    Still a third legal rule may stymie ineffective-assistance
claims on direct appeal: our standard of review. Like Robin-
son, most defendants do not raise their ineffective-assistance
claims in the district court prior to appealing their convic-
tions. As a result, we generally review these claims for plain
error. See Cates, 950 F.3d at 456; Fed. R. Crim. P. 52(b). Under
plain error review, we reverse only if counsel’s ineffectiveness
was “plain” or “obvious,” and not only prejudiced the de-
fendant but also “seriously affected the fairness, integrity or
public reputation of judicial proceedings.” United States v.
Olano,
507 U.S. 725, 734, 736
(1993) (citation modified).



     2 Strickland also requires the defendant demonstrate that his counsel’s

deficient performance prejudiced him. Id. at 687.
Nos. 23-1498 & 23-2171                                                       11

    In his briefing, Robinson acknowledged the risks of raising
his ineffective-assistance claim on direct appeal. We neverthe-
less asked Robinson’s counsel at oral argument whether he
had discussed these risks with his client. Counsel confirmed
that he had and that Robinson wished to proceed. We there-
fore reach the merits of his claim. 3
   Robinson points to three omissions by his trial counsel to
support his claim of ineffective assistance: the failure to (1) ask
Anise how she recognized her signatures on the exhibits



    3 Our sister circuits generally refuse to entertain ineffective-assistance

claims on direct appeal. See United States v. Flete-Garcia,
925 F.3d 17
, 39–40
(1st Cir. 2019) (dismissing without prejudice an ineffective-assistance
claim that depended on further factual development); United States v. Ben-
ton,
523 F.3d 424, 435
(4th Cir. 2008) (same); United States v. Green,
47 F.4th
279
, 296 (5th Cir. 2022) (same); United States v. Buchanan,
933 F.3d 501, 513
(6th Cir. 2019) (same); United States v. Oliver,
950 F.3d 556
, 566–67 (8th Cir.
2020) (same); United States v. McGowan,
668 F.3d 601
, 605–06 (9th Cir. 2012)
(same); see also United States v. Knight,
824 F.3d 1105
, 1112–13 (D.C. Cir.
2016) (remanding for an evidentiary hearing when a defendant raises a
“colorable” ineffective-assistance claim on direct appeal).
      Our historical practice, too, was to decline to reach unripe ineffective-
assistance claims on direct appeal. See United States v. Best,
426 F.3d 937,
944
(7th Cir. 2005) (“Normally, we do not review ineffective assistance of
counsel claims on direct review…”); see also United States v. Brooks,
125 F.3d
484, 495
(7th Cir. 1997); United States v. Marshall,
985 F.2d 901
, 906 (7th Cir.
1993). While neither party advocates that we revert to our prior practice—
and we do not do so here—we pause to observe its advantages, including
greater judicial efficiency and procedural protections for defendants. See,
e.g., Massaro v. United States,
538 U.S. 500, 505
(2003) (remarking that “rules
of procedure should be designed to induce litigants to present their con-
tentions to the right tribunal at the right time” and trial courts are “best
suited to developing the facts necessary to determining the adequacy of
representation” (citation modified)).
12                                     Nos. 23-1498 & 23-2171

presented to the grand jury, (2) emphasize Anise’s memory
loss in closing arguments, and (3) request a jury instruction
on the effect of Anise’s memory loss.
    None of the above satisfy Robinson’s weighty burden to
show that it was “obvious” that his trial counsel’s perfor-
mance fell below an objective standard of reasonableness and
seriously affected the fairness of the judicial proceedings.
Robinson’s trial counsel may have refrained from inquiring
into Anise’s signatures out of concern that her response
would bolster her credibility, rather than undermine it. Simi-
larly, trial counsel could have reasonably concluded that the
jury was sympathetic to the difficult birth of Anise’s daughter,
and argument focused on her bias, rather than her memory,
would be more persuasive. As for trial counsel’s failure to re-
quest a special jury instruction, Robinson has not come for-
ward with any precedent supporting his entitlement to such
an instruction. So we disagree that his counsel’s failure to re-
quest one plainly fell below an objective standard of reasona-
ble professional conduct. We therefore hold that Robinson has
not demonstrated that his trial counsel rendered constitution-
ally inadequate assistance.
C. Swanson’s Sentencing Claim
    Swanson challenges only a small portion of his sentence—
the ability of probation officers, upon reasonable suspicion, to
search his workplace while he is on supervised release (Model
Condition 23). He charges that this condition, included in his
written judgment of conviction, is inconsistent with his sen-
tence as orally pronounced. We review claims of discrepancy
between oral and written judgments de novo. United States v.
Dennis,
119 F.4th 1103
, 1113 (7th Cir. 2024).
Nos. 23-1498 & 23-2171                                        13

    When a defendant’s written judgment of conviction con-
flicts with the court’s unambiguous oral pronouncement of
his sentence, the oral pronouncement controls. United States v.
Malinowski,
129 F.4th 431
, 436 (7th Cir. 2025). Yet not every
difference between a written judgment and an oral pro-
nouncement constitutes a conflict. United States v. Strobel,
987
F.3d 743
, 748 (7th Cir. 2021). A written judgment of conviction
may “clarify” an ambiguous oral pronouncement, so long as
it does not contradict it.
Id.
We are skeptical that Swanson’s “place of employment”
objection or the court’s grant of this objection referred to any-
thing more than unannounced visits at his workplace at any
reasonable time (Model Condition 16). But even assuming the
court’s oral pronouncement was ambiguous, Swanson’s chal-
lenge fails. The district court never expressly stated that it
would modify Model Condition 23, which requires visiting
officers have reasonable suspicion, and Swanson waived his
right to an in-court reading of his release conditions. See
id.
(explaining that where a defendant waives in-court recitation
of his supervised release conditions, a sentencing court may
incorporate previously reviewed conditions by reference).
The written judgment thus does not contradict his sentence as
orally pronounced. At best, it may be read to clarify the sweep
of the granted objection, an elucidation our law permits.
                         *      *      *
   The judgments of the district court are
                                                      AFFIRMED.