United States v. Robinson: Genuine Memory Loss Does Not Bar Admission of Prior Testimonial Statements When Cross-Examination Is Possible

Introduction

This commentary analyses the Seventh Circuit’s consolidated decision in United States v. Pierre Robinson & Derrick Swanson (Nos. 23-1498 & 23-2171, decided 9 July 2025). The ruling answers three distinct questions:

Confrontation Clause: Whether a witness’s genuine and pervasive memory loss renders her prior testimonial statements inadmissible when the defendant can still cross-examine her.
Ineffective Assistance of Counsel (IAC): How far an appellate court will probe an IAC claim raised for the first time on direct appeal.
Sentencing – Supervised Release: When a written judgment that contains search conditions conflicts with, or merely clarifies, the court’s oral pronouncement.

Defendant-appellant Pierre Robinson was convicted of murder in aid of racketeering (18 U.S.C. § 1959(a)(1)) for the 2014 shooting of Glenn Houston, Jr. A key Government witness—Robinson’s cousin Anise—could no longer remember her prior identifications of Robinson owing to medical complications that followed childbirth. Derrick Swanson, a cooperating co-defendant, challenged only a supervised-release condition. Judge St. Eve, writing for a unanimous panel (St. Eve, Lee, Maldonado JJ.), affirmed both convictions and the contested release condition.

Summary of the Judgment

Confrontation Clause: Admission of Anise’s prior police statement and grand-jury testimony did not violate the Sixth Amendment because Robinson had a “full and fair opportunity” to cross-examine her, even though her memory loss was genuine.
Ineffective Assistance: Robinson failed to show that counsel’s omissions were “plain” or “obvious” errors affecting the fairness of the proceedings; the panel reiterated the prudential preference for litigating IAC claims via collateral review.
Supervised Release Condition: The written judgment’s “reasonable-suspicion workplace search” term (Model Condition 23) merely clarified—not contradicted—the court’s oral statement striking unannounced workplace visits (Model Condition 16). Hence no remand was required.

Analysis

1. Precedents Cited

United States v. Owens, 484 U.S. 554 (1988) – Memory-impaired witness still subject to cross-examination satisfies the Confrontation Clause.
Delaware v. Fensterer, 474 U.S. 15 (1985) – The Clause requires only an “opportunity” to challenge testimony; actual memory defects go to weight, not admissibility.
Crawford v. Washington, 541 U.S. 36 (2004) – Testimonial hearsay must be subject to cross-examination unless the witness is unavailable and the defendant had a prior opportunity to question her.
United States v. Keeter, 130 F.3d 297 (7th Cir. 1997); United States v. Shaffers, 22 F.4th 655 (7th Cir. 2022) – Seventh Circuit authority mirroring Owens.
Strickland v. Washington, 466 U.S. 668 (1984) – The two-prong test for IAC.
United States v. Olano, 507 U.S. 725 (1993) – Plain-error framework applied to unpreserved claims.
United States v. Strobel, 987 F.3d 743 (7th Cir. 2021) – Written vs. oral sentencing pronouncements.

These authorities collectively shaped the panel’s analysis: Owens and its progeny governed the Confrontation Clause issue; Strickland and Olano set the bar for IAC on direct review; and Strobel framed the sentencing discrepancy question.

2. Legal Reasoning

2.1 Confrontation Clause

The central doctrinal move is the extension of Owens to a witness who has forgotten everything about prior identifications but can still:

Confirm her own signature and personal details, thereby establishing foundation;
Be questioned in open court about bias, credibility, and the extent of her memory loss.

The panel emphasized that the “right to confront” guarantees only an opportunity for cross-examination, not any particular level of testimonial recall. Because defense counsel asked about Anise’s bias (friendship with the victim’s sister, possible gang affiliation) and memory impairment, Robinson wielded “realistic weapons” to undermine credibility before the jury. Therefore, admission under Fed. R. Evid. 801(d)(1)(A) was constitutionally sound.

2.2 Ineffective Assistance of Counsel

Three alleged missteps—failing to quiz Anise on signature recognition, downplaying memory loss in closing, and omitting a jury instruction—did not meet the high threshold of plain error:

Counsel may have avoided signature questions to prevent rehabilitating the witness.
Choosing to focus on bias rather than memory could be strategic, and courts must defer to reasonable trial tactics viewed ex ante.
No authority mandates a special “memory-loss instruction,” so failure to request one cannot be “plain.”

Crucially, the opinion underscores that defendants risk procedural default by pressing IAC on direct appeal instead of § 2255, where factual development (affidavits, evidentiary hearings) is available.

2.3 Written vs. Oral Sentencing Conditions

The district judge verbally struck Model Condition 16 (unannounced workplace visits) but never mentioned Model Condition 23 (reasonable-suspicion searches). Because the defendant waived a recital of conditions and Condition 23 does not contradict the oral ruling, the written judgment stands. The panel labels it a permissible “clarification.”

3. Impact of the Judgment

Expanded Evidentiary Latitude: Prosecutors in the Seventh Circuit may safely introduce prior testimonial statements from genuinely memory-impaired witnesses, provided cross-examination—no matter how unproductive—occurs.
Strategic Guidance for Defense: Defense teams must now assume that severe memory loss alone will not exclude testimonial hearsay; instead they must marshal arguments on bias, perception, or motive to lie.
Appellate Practice Point: The decision reinforces that direct-appeal IAC claims face an uphill climb; practitioners should reserve them for collateral review unless the record is indisputably complete.
Sentencing Clarity: District judges should expressly differentiate between “visitation” and “search” conditions during pronouncement to avoid later ambiguities; nevertheless, the opinion shows that written judgments clarifying ambiguities will be upheld.

Complex Concepts Simplified

Confrontation Clause: A constitutional rule letting defendants question (cross-examine) witnesses against them. It is satisfied if the defendant merely has the chance to ask questions; the witness need not remember everything.
Rule 801(d)(1)(A): A Federal Evidence rule that treats certain prior statements as non-hearsay if (i) the declarant testifies at trial and (ii) the statements are inconsistent with today’s testimony and were made under oath (e.g., grand jury).
Plain Error Review: On appeal, the court will reverse an un-objected-to error only if it is obvious, affected the defendant’s rights, and seriously tarnished judicial integrity.
Model Conditions 16 & 23: Standard supervised-release terms in the Northern District of Illinois. Condition 16 allows probation to visit the defendant’s workplace; Condition 23 authorizes searches on reasonable suspicion.

Conclusion

United States v. Robinson cements a pragmatic reading of the Confrontation Clause: genuine total memory loss is not a silver bullet for excluding testimonial hearsay when the opportunity for cross-examination exists. The panel simultaneously provides a cautionary tale on raising IAC claims prematurely and offers sentencing courts leeway to resolve ambiguities between oral and written pronouncements. Collectively, the ruling supplies prosecutors, defense counsel, and trial judges in the Seventh Circuit with clearer guideposts for evidentiary admissions, tactical decision-making, and supervised-release drafting.