United States v. Rodrick Domonique Jones

• Court: Court of Appeals for the Eleventh Circuit
• Decided: September 13, 2021
• Docket: 20-10359
• Status: Unpublished

Opinion

USCA11 Case: 20-10359 Date Filed: 09/13/2021 Page: 1 of 15

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 20-10359 Non-Argument Calendar ________________________

D.C. Docket No. 9:19-cr-80013-KAM-1

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

RODRICK DOMONIQUE JONES,

Defendant - Appellant.

________________________

Appeal from the United States District Court for the Southern District of Florida ________________________

(September 13, 2021)

Before WILSON, MARTIN, and ROSENBAUM, Circuit Judges.

PER CURIAM: USCA11 Case: 20-10359 Date Filed: 09/13/2021 Page: 2 of 15

In March 2019, a grand jury charged Rodrick Jones with four counts of bank

robbery, 18 U.S.C. § 2113(a); five counts of armed bank robbery, 18 U.S.C.

§ 2113(a) and (d); and five counts of brandishing a firearm in furtherance of a

crime of violence, § 924(c)(1)(A).

Before trial, Jones moved to suppress evidence found during the execution

of a search warrant on the basis that the affidavit submitted by law enforcement to

obtain the search warrant was based on false or misleading information, or omitted

material facts. Among that evidence are two cell phones, from which data imaging

revealed Google Earth images of Chase Bank locations. The search-warrant

affidavit, completed by FBI Agent Daniel Szczepanski, summarized information

relating to a series of fourteen Chase Bank robberies between 2015 and 2018.

Jones argued that it intentionally or recklessly omitted or misrepresented

information connecting him to the robberies through the use of a gold car, the use

of a white car, possession of baseball caps worn by the suspect, and physical

similarities with the suspect. After conducting a hearing, the district court denied

Jones’s motion. It found that Jones failed to make the requisite showing of

misrepresentations or omissions. The court admitted the evidence at trial.

As the case moved to trial, the government filed a motion in limine to

introduce evidence of four uncharged bank robberies under Federal Rule of

Evidence 404(b). It argued that in all the robberies—charged and uncharged—the

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suspect approached the teller, presented demand notes that indicated that he had a

gun and demanded money, wore baseball caps and casual clothing, acted like a

normal customer, carried an envelope or folder that he put the money in, and

investigated the Chase Bank locations on Google Earth. Because of the

similarities, the government argued that the evidence was admissible under Rule

404(b) as it was relevant to Jones’s intent, preparation, plan, knowledge, and

identity. The district court granted the government’s Rule 404(b) motion for the

limited purpose of identity.

The government also sought to admit digital information from one of the cell

phones obtained from Jones’s home through the testimony of the government’s

expert witness, FBI Examiner Brian O’Neil. Over objection, the district court

admitted into evidence Google Earth images of Chase Bank locations. Jones

objected to the admission the Google Earth information on the ground that the

government had not timely disclosed the information. The district court sustained

the objection in part.

O’Neil continued with his testimony and the district court admitted the data

into evidence. Jones objected to the evidence on further grounds that the

extrapolations and interpretations of the data were never provided to him. The

district court ordered a four-day recess for the purpose of providing Jones with an

opportunity to investigate the matter. During recess, Jones moved to exclude

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O’Neil’s testimony. The district court found no bad faith on the part of the

government but acknowledged that there may have been neglect in not discovering

the data earlier. The district court denied Jones’s motion to exclude, and O’Neil’s

testimony continued.

O’Neil testified that through the use of a software program, he extracted the

information contained on two smartphones recovered from the property search and

generated a readable report on the information recovered. This procedure also

extracted images contained in the Google Earth application’s cache database,

where the application temporarily stored items on the phone.1 O’Neil identified

six images extracted from the Google Earth cache database and their creation

dates, which aligned with robbery dates. He also identified the phones’ web

searches that were not based on the Google Earth cache database, which were

admitted into evidence, and indicated that Chase banks located in the area of the

robberies had been searched for. The government also called Agent Szczepanski,

who testified that the property search turned up two phones from which they could

extract information. One phone had been on Jones’s person at the time of the

search, and the other had been in his room.

1 “Cache” means a “special memory subsystem in which frequently used data values are duplicated for quick access.” United States v. Pruitt, 638 F.3d 763, 765 n.1 (11th Cir. 2011) (per curiam). 4 USCA11 Case: 20-10359 Date Filed: 09/13/2021 Page: 5 of 15

After hearing all the evidence, the jury returned guilty verdicts on four

counts of bank robbery, 18 U.S.C. § 2113(a) (Counts 1, 8, 11, and 14); and five

counts of armed bank robbery, 18 U.S.C. § 2113(a) and (d) (Counts 2, 4, 6, 9, and

12). Jones was found not guilty on five counts of brandishing a firearm in

furtherance of a crime of violence, § 924(c)(1)(A) (Counts 3, 5, 7, 10, and 13).

Jones moved for a judgment of acquittal on all counts, which the district court

denied.

Jones raises four issues on appeal. First, he argues that the district court

erred in denying his motion to suppress evidence from the search of his home and

cell phones because the search-warrant affidavits were insufficient. Second, he

argues that the district court abused its discretion in granting the government’s

motion to admit evidence of uncharged robberies under Federal Rule of Evidence

404(b). Third, he argues that the district court abused its discretion in allowing the

government’s expert and case agent to testify about exhibits extracted from the cell

phones because they were never properly disclosed. Fourth, he argues that the

district court erred in denying his motion for judgment of acquittal as to all counts.

I. Motion to Suppress

Jones argues that the district court erred in denying his motion to suppress

evidence from the government’s searches of his home and of the digital contents of

the recovered cell phones because the property search-warrant affidavit was

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insufficient. 2 We review the district court’s factual findings on a motion to

suppress for clear error and its application of law to those facts de novo. United

States v. Novaton, 271 F.3d 968, 986 (11th Cir. 2001). To be clearly erroneous, a

district court’s finding must leave us with a definite and firm conviction that a

mistake was made. United States v. Foster, 155 F.3d 1329, 1331 (11th Cir. 1998).

The facts are construed in the light most favorable to the party who prevailed

below. United States v. Hall, 47 F.3d 1091, 1094 (11th Cir. 1995).

There is a presumption of validity for the affidavit supporting a search

warrant. Franks v. Delaware, 438 U.S. 154, 171 (1978). Accordingly, the

individual challenging the search has the burden of proving that misrepresentations

or omissions rendered the search-warrant affidavit insufficient. See Novaton, 271

F.3d at 986–87. To be entitled to relief, the individual must show: “(1) that the

alleged misrepresentations or omissions were knowingly or recklessly made by

[the affiant], and (2) that the result of excluding the alleged misrepresentations and

including the alleged omissions would have been a lack of probable cause for

issuance of the warrants.” Id.; see also Franks, 438 U.S. at 156 (“In the event that

at [a suppression] hearing the allegation of perjury or reckless disregard is

established by the defendant by a preponderance of the evidence, and, with the

2 Jones also argues that the phone-search warrant was similarly insufficient as it repeated the information in the property-search warrant. Our analysis relates to both. 6 USCA11 Case: 20-10359 Date Filed: 09/13/2021 Page: 7 of 15

affidavit's false material set to one side, the affidavit's remaining content is

insufficient to establish probable cause, the search warrant must be voided and the

fruits of the search excluded to the same extent as if probable cause was lacking on

the face of the affidavit.”). Allegations of negligence or innocent mistake are

insufficient to satisfy the first prong. Franks, 438 F.3d at 171.

Construing the facts in the light most favorable to the government, we find

that the district court did not err in denying Jones’s suppression motion because he

has not shown that the alleged errors were intentional or done with reckless

disregard for the truth. We recognize that there were minor errors in the affidavit

and places where additional information would be helpful. Nonetheless, the facts

supplied in the search affidavit, and verified at the hearing before the district court,

establish the necessary connection between Jones and the gold car, white car,

baseball caps worn by the suspect, and physical characteristics of the suspect. The

affidavit explained that the gold car, registered to Jones at the time of one of the

robberies, was seen on surveillance cameras near the Chase Bank, and that

witnesses told law enforcement that they had seen the suspect walk in the direction

of the car. It drew similar connections between Jones and the white car. The

search-warrant affidavit also explained that Facebook posts revealed that Jones

owned hats similar to the ones worn by the suspect during the robberies. Finally,

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the affidavit included photographs of Jones consistent with witnesses’ physical

description of the suspect.

The court properly determined that any misrepresentations or omissions

were done by negligence or mistake. And the district court correctly noted that,

even if there were omissions or misrepresentations, remedying them would not

eliminate probable cause. The totality of the circumstances supported the district

court’s finding that Jones did not meet his burden as his asserted errors were either

due to negligence or a mistake, and did not eliminate the fair probability of

criminal activity that was necessary to establish probable cause.

II. Admission of Evidence of Uncharged Robberies

Jones argues that the district court erred in granting the government’s Rule

404(b) motion to admit evidence of uncharged robberies. “We will not disturb the

trial judge’s decision to admit or exclude Fed. R. Evid. 404(b) ‘other crimes’

evidence absent a clear showing of abuse of discretion.” United States v. Delgado,

56 F.3d 1357, 1363 (11th Cir. 1995). Rule 404(b) provides: “Evidence of any

other crime, wrong, or act is not admissible to prove the character of a person in

order to show” action in conformity therewith. Fed. R. Evid. 404(b). It may,

however, “be admissible for another purposes, such as . . . identity.” Id. The

district court abuses its discretion, under Rule 404(b), when it admits evidence of a

previous bad act that does not satisfy the following three criteria: (1) the evidence

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must be relevant to an issue other than the defendant’s character; (2) the evidence

must be accompanied by sufficient proof that a jury could find that the defendant

committed the extrinsic act; and (3) the probative value of the evidence must not

be substantially outweighed by its undue prejudice, and the evidence must meet the

other requirements of Rule 403. United States v. Whatley, 719 F.3d 1206, 1217

(11th Cir. 2013).

When Rule 404(b) evidence is offered to establish identity, this standard is

“particularly stringent.” United States v. Lail, 846 F.2d 1299, 1301 (11th Cir.

1988). “[T]he likeness of the offenses is the crucial consideration. The physical

similarity must be such that it marks the offenses as the handiwork of the accused,”

demonstrating a modus operandi. Whatley, 719 F.3d at 1217. The crimes need not

be identical in every detail, but they must possess a commonality that makes it very

likely that the unknown perpetrator of the charged crime and the known perpetrator

of the uncharged crime are the same. United States v. Myers, 550 F.2d 1036, 1045

(5th Cir. 1977).3 As to the third prong, the central factor is whether the evidence is

essential to obtain a conviction or the government can do without such evidence.

See United States v. Pollock, 926 F.2d 1044, 1049 (11th Cir. 1991). An evaluation

of the evidence’s probative value must also consider the similarity between the

3 Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc) (holding that all decisions of the “old Fifth” Circuit handed down prior to the close of business on September 30, 1981, are binding precedent in the Eleventh Circuit). 9 USCA11 Case: 20-10359 Date Filed: 09/13/2021 Page: 10 of 15

extrinsic and charged offenses and the time between the offenses. United States v.

Hernandez, 896 F.2d 513, 521 (11th Cir. 1990).

Under Rule 403, the court may exclude relevant evidence if its probative

value is substantially outweighed by a danger of one or more of the following:

unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting

time, or needlessly presenting cumulative evidence. Fed. R. Evid. 403. In the

context of Rule 404, because Rule 403 permits exclusion of otherwise probative

evidence, the district court must use it sparingly and strike the balance in favor of

admissibility. United States v. Fortenberry, 971 F.2d 717, 721 (11th Cir. 1992).

The district court did not abuse its discretion in granting the government’s

motion. As an initial matter, we recognize that two of the uncharged robberies

were not presented at trial. Thus any error would be harmless. See id.

We then look to the other two uncharged robberies. First, Jones does not

contest that evidence of the uncharged robberies was not related to his character.

Second, we agree with the district court that the government showed a consistent

pattern between the charged and uncharged robberies. See Whatley, 719 F.3d at

1217. Specifically, each involved: (1) Chase banks, (2) a suspect wearing a

baseball cap; (3) a suspect acting like a regular customer, (4) a demand note that

referenced a gun, and (5) a suspect using an envelope or folder. Moreover, the

banks were implicated in the data extracted from Jones’s phone. And the

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uncharged robberies occurred in the same 18-month period of the charged

robberies. To the third prong, we find that the government presented sufficient

evidence that the jury could reasonably find by a preponderance of the evidence

that Jones committed the uncharged robberies. See id. Due to their similarity,

their probative value was not outweighed by the danger of any concern under

Rule 403. See Fortenberry, 971 F.2d at 721.

III. Admission of Google Earth Exhibits

Jones argues that the district court erred in allowing O’Neil and Agent

Szczepanski to testify about digital forensic evidence extracted from the Google

Earth applications on Jones’s cell phones. Specifically, he argues that the district

court erred in allowing O’Neil to testify about the Google Earth extracted data

information because the government did not timely disclose the information and

did not update O’Neil’s expert disclosure to give notice. He also argues that the

district court’s subsequent admission of Agent Szczepanski’s testimony was in

error because of those underlying discovery violations.

We review the district court’s decisions regarding the discovery and the

admissibility and reliability of expert testimony for an abuse of discretion. See

United States v. Holt, 777 F.3d 1234, 1264 (11th Cir. 2015) (regarding expert

testimony); United States v. Campa, 529 F.3d 980, 992 (11th Cir. 2008) (regarding

discovery). An abuse of discretion can occur where the district court applies the

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wrong law, follows the wrong procedure, bases its decision on clearly erroneous

facts, or commits a clear error in judgment. United States v. Willner, 795 F.3d

1297, 1316 (11th Cir. 2015).

Federal Rule of Criminal Procedure 16 requires that the government permit

the defendant, upon request, to inspect any papers, documents, or tangible objects

that are in the government’s possession and (1) are material to preparing the

defense, (2) are intended to be used by the government in its case in chief, or

(3) were obtained from the defendant. Fed. R. Crim. P. 16(a)(1)(c). For expert

witnesses, Rule 16 requires that, at the defendant’s request, the government must

provide “a written summary of any testimony that the government intends to

use . . . during its case-in-chief at trial.” Fed. R. Crim. P. 16(a)(1)(G).

Additionally, the government has a continuing duty to disclose newly discovered

evidence. See Fed. R. Crim. P. 16(c).

When a discovery violation occurs under Rule 16, there is no automatic

consequence; relief for the violation lies within the discretion of the trial court.

United States v. Mosquera, 886 F.3d 1032, 1045 (11th Cir. 2018). If a violation

occurs, the district court should impose the least severe sanction necessary to

ensure prompt and complete compliance with its discovery orders. United States v.

Turner, 871 F.2d 1574, 1580 (11th Cir. 1989). In determining a sanction, the

district court should consider the reasons for the delay in complying with the

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discovery order, whether there was any bad faith by the prosecution, prejudice to

the defendant, and the availability of a means to cure the prejudice. Id. To support

reversal, the defendant must show prejudice to his substantial rights. Mosquera,

886 F.3d at 1045. We have said that substantial prejudice exists when a defendant

is unduly surprised and lacks an adequate opportunity to prepare a defense, or if

the mistake substantially influences the jury. Id.

The district court did not abuse its discretion in permitting O’Neil and Agent

Szczepanski to testify about the extractions and interpretations from the Google

Earth databases. The district court recognized that there was a discovery issue: the

delay in finding the information caused some prejudice to Jones. And the court

acted well within its discretion to determine that a recess was an appropriate

remedy; it allowed time for the government to comply and for Jones to review the

data. The court had discretion to remedy the violation as it saw fit. See id.

Moreover, because the court allowed Jones additional time to review the Google

Earth Data, Jones was not prejudiced. Jones was therefore not unduly surprised,

nor did he lack an adequate opportunity to prepare a defense. See id. Therefore

allowing O’Neil and Agent Szczepanski to testify, and admitting the data into

evidence was not reversible error.

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IV. Motion for Judgment of Acquittal

Jones argues that the district court erred in denying his motion for judgment

of acquittal. Specifically, he argues that all the evidence presented by the

government was purely circumstantial. He also argues that, with respect to Count

13, brandishing a firearm in furtherance of a crime of violence, 18 U.S.C.

§ 924(c)(1)(A), there was no evidence concerning the use of a firearm by the

suspect during the robbery.

We review the sufficiency of the evidence to support a conviction de novo,

viewing the evidence in the light most favorable to the government and drawing all

reasonable inferences and credibility choices in favor of the jury’s verdict. United

States v. Rodriguez, 218 F.3d 1243, 1244 (11th Cir. 2000) (per curiam). It is not

necessary that the evidence exclude every reasonable hypothesis of innocence,

provided a reasonable trier of fact could find that the evidence establishes guilt

beyond a reasonable doubt. United States v. Young, 906 F.2d 615, 618 (11th Cir.

1990). In determining the sufficiency of the prosecution’s case, we make no

distinction between circumstantial and direct evidence. United States v. Tate, 586

F.3d 936, 945 (11th Cir. 2009).

The district court did not err in denying Jones’s motion for judgement of

acquittal. We are not persuaded by Jones’s argument that a jury could not find him

guilty beyond a reasonable doubt based on purely circumstantial evidence, as we

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do not distinguish between direct and circumstantial evidence when determining

sufficiency of the evidence. See id. In any event, the jury heard numerous

witnesses testify about the robberies themselves, how Jones had cars that matched

those seen at the robberies, that his phones showed that he had searched the areas

around the banks, that his fingerprints were on two of the demand notes, and how

those banks were federally insured. As such, the jury could reasonably find that

Jones committed the robberies beyond a reasonable doubt. See Young, 906 F.2d at

618. To the extent that Jones challenges Count 13, the jury already acquitted him,

and we need not address that argument. Accordingly, we affirm.

AFFIRMED.