United States v. Turns

• Court: Court of Appeals for the Sixth Circuit
• Decided: May 12, 2004
• Docket: 00-3741
• Status: Published

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 United States v. Nos. 00-3617/3618/3741 ELECTRONIC CITATION: 2004 FED App. 0136P (6th Cir.) Beverly, et al. File Name: 04a0136p.06 _________________ UNITED STATES COURT OF APPEALS COUNSEL FOR THE SIXTH CIRCUIT ARGUED: Richard A. Cline, MITCHELL, ALLEN, _________________ CATALANO & BODA, Columbus, Ohio, Kevin P. Durkin, TAYLOR & DURKIN, Columbus, Ohio, Gary W. Deeds, UNITED STATES OF AMERICA , X Columbus, Ohio, for Appellants. J. Michael Marous, Plaintiff-Appellee, - ASSISTANT UNITED STATES ATTORNEY, Columbus, - Ohio, for Appellee. ON BRIEF: Richard A. Cline, - Nos. 00-3617/ MITCHELL, ALLEN, CATALANO & BODA, Columbus, v. - 00-3618/3741 Ohio, Kevin P. Durkin, TAYLOR & DURKIN, Columbus, > Ohio, Gary W. Deeds, Columbus, Ohio, for Appellants. , NOAH BEVERLY (00-3617); - J. Michael Marous, David J. Bosley, ASSISTANT UNITED JOHNNY P. CROCKETT - STATES ATTORNEY, Columbus, Ohio, for Appellee. (00-3618); DOUGLA S A. - _________________ TURNS (00-3741), - Defendants-Appellants. - OPINION - _________________ N Appeal from the United States District Court BOGGS, Chief Judge. Noah Beverly, Douglas A. Turns, for the Southern District of Ohio at Columbus and Johnny P. Crockett were indicted for multiple crimes by No. 99-00104—James L. Graham, Chief District Judge. a federal grand jury, charging them with conspiracy to commit armed bank robbery, in violation of 18 U.S.C. § 371, Argued: February 4, 2003 committing various armed bank robberies, in violation of 18 U.S.C. § 2113(a) and (d), and possessing firearms during and Decided and Filed: May 12, 2004 in relation to these crimes of violence, in violation of 18 U.S.C. § 924(c). After two evidentiary hearings, a jury trial Before: BOGGS, Chief Judge; NORRIS, Circuit Judge; commenced in which all three defendants were tried together. and BELL, Chief District Judge.* On February 8, 2000, the jury returned a verdict of guilty on all counts against Beverly and Turns. Crockett was found guilty of conspiracy to commit armed bank robbery, of robbing Security National Bank, and the Park National Bank in Hebron, Ohio, and of using a firearm in commission of those crimes, but was found not guilty of robbing two other * banks with another defendant not involved in this appeal. The Honorable Robert H. Bell, Chief United States District Judge for the Western District of Michigan, sitting by designation.

1 Nos. 00-3617/3618/3741 United States v. 3 4 United States v. Nos. 00-3617/3618/3741 Beverly, et al. Beverly, et al.

All three defendants have appealed this verdict. Beverly trial: Anthony Lavelle Rogers and his half-brother Melvin appeals the introduction of mitochondrial DNA (mtDNA) Warren, Jr.. In each of the seven robberies, either Rogers, evidence against him at trial, arguing that the evidence was Warren, or both, participated in the event and so testified to not scientifically reliable and, even if reliable, its probative what occurred. Neither Rogers nor Warren are defendants in value was outweighed by its prejudicial effect. In addition, this case because they both entered into a plea agreement as Beverly joins the other defendants in bringing a Batson part of a guilty plea to armed bank robbery. challenge, arguing that the district court committed clear error when it granted the government’s peremptory challenge against an African-American who could have been seated on the jury panel. Turns appeals the district court’s decision to Delaware County Bank and Trust join his trial with the other two defendants, and further argues that the district court abused its discretion in denying his According to Rogers’s testimony at trial, on September 26, Rule 14 motion to sever his trial. Turns also contends that the 1994, Rogers and Turns stole a Chevrolet Blazer from a district court abused its discretion in limiting his examination trucking company and robbed the Delaware County Bank and of a government witness, that the district court erred in its Trust in Ashley, Ohio on the following day. Turns waited denial of his motion for acquittal, and that his sentence of outside, feigning mechanical problems, while Rogers, having seventy-one and one half years, largely mandated by the borrowed Turns’s gun, went inside and robbed the bank. requirement of consecutive sentencing under 18 U.S.C. Rogers carried a silver pistol provided by Turns. After the § 924(c)(1)(D)(ii), is cruel and unusual punishment in robbery, the two drove to Columbus, Ohio where Turns’s violation of the Eighth Amendment. Crockett appeals his sister, Starla Turns, had a house. Rogers claimed he gave conviction on the basis of prosecutorial misconduct and Turns $5,000 of the more than $70,000 he took from the argues that the district court erred in its denial of his motion vault. for acquittal. In addition, Crockett contends that the district court abused its discretion in failing to excuse a potential Rogers was dating Starla and he was planning on leaving juror for cause, in admitting testimony regarding his wife’s for Disney World with her the next day, so that night Rogers pretrial identification of him in a bank surveillance photo, in rented a hotel room near the Columbus airport. When Rogers admitting into evidence his failure to file income tax returns, realized that it would unwise to attempt to take the gun on the and in limiting his examination of a government witness’s airplane, he spoke with Turns about what he should do with probation officer. For the reasons set forth below, we affirm it. Turns apparently suggested that Rogers leave it the defendants’ convictions. underneath the bushes near the hotel, where Turns could later recover it. Turns has a different version. According to the testimony of FBI Agent Harry Trombitas, Turns told him that he, Turns, had found the gun in his car after having lent the I vehicle to Rogers. Turns then informed Agent Trombitas about the weapon, and stashed it under some bushes by this This case is about a series of bank robberies that occurred same hotel while waiting for the FBI to come and pick it up. in Ohio between September 1994 and November 1995. Much In Florida, while visiting Disney World, Rogers and Starla of what happened was described by two men who testified at Nos. 00-3617/3618/3741 United States v. 5 6 United States v. Nos. 00-3617/3618/3741 Beverly, et al. Beverly, et al.

used various forms of false identification, which were directed by Turns, drove to Turns’s brother’s house, where allegedly provided to them by Turns. the three counted their take and divided it into thirds. Within ten days of the robbery, Lisa Dennis, Turns’s Several weeks after the robbery, Warren and Rogers were girlfriend, made two round-number cash deposits to her bank stopped by the police and Rogers used Turns’s driver’s account. The first deposit, made two days after the robbery, license as identification. Though Rogers was released, a gun was for $500, and a week later, a second deposit of $600 was was recovered from the car and Warren was arrested. The made. According to testimony presented at trial, neither ownership of the gun was traced back to Turns, who had Turns nor his girlfriend had a source of income that would purchased the weapon on September 9, 1993. This gun was explain these deposits. Turns’s entire income during this allegedly provided to Rogers by Turns prior to the Park period was apparently derived from unemployment benefits National Bank robbery. and his girlfriend, Dennis, was only receiving general assistance and funds from Aid to Dependant Children. Eight months after the December 30, 1994 robbery, Turns stated to the FBI that he had been at the aforementioned Eleven months later, Turns provided details of this robbery shopping center with the Meijer store that day with his to the FBI, but denied his own involvement. Turns placed the brother and had happened to see Warren and Rogers there. amount stolen as between $70,000 and $80,000. The actual Turns stated that Warren and Rogers told him details about amount stolen was $72,500. Turns implicated Rogers, the robbery later in the day, including the fact that they had describing his disguise and noting that he had seen Rogers in taken approximately $35,000. The actual amount stolen was a white Chevrolet Blazer with Kentucky license plates. $31,377.

Park National Bank in Kirkersville, Ohio National City Bank In December 1994, Rogers, his half-brother Melvin Another bank robbery occurred five months later, on Warren, and Turns drove Warren’s burgundy Cadillac to a May 12, 1995, involving Warren, Beverly, and a third man Meijer shopping center in Columbus, Ohio, where Rogers named Colby. Warren testified that while the three of them stole a car. The theft was recorded by surveillance cameras. were drinking at Beverly’s house they decided to rob a bank. Turns, Rogers, and Warren drove to Kirkersville, Ohio. Warren, Beverly, and Colby parked at a nearby auto-parts Rogers and Warren then took the stolen car and drove to the store and walked into the National City Bank on Lockbourne bank, while Turns waited with Warren’s Cadillac at a nearby Road in Columbus. Once in the bank, they began shouting freeway on-ramp. Again, Turns feigned mechanical problems for everyone to put their hands up. Beverly carried a while Rogers and Warren robbed the Park National Bank, revolver. The robbery netted $3,428. It was filmed by bank with Rogers using a gun he had gotten from Turns. Warren surveillance cameras. Warren identified Beverly as one of the used a gun obtained from Beverly. After robbing the bank, robbers in the surveillance photographs shown at trial. Rogers and Warren drove the stolen car to the freeway on- ramp where they shifted into the Cadillac with Turns. Warren, Nos. 00-3617/3618/3741 United States v. 7 8 United States v. Nos. 00-3617/3618/3741 Beverly, et al. Beverly, et al.

Security National Bank robbery investigation, FBI Agent Trombitas interviewed Crockett’s wife, who identified her husband in the On May 18, 1995, Warren, Rogers, Beverly, and Crockett surveillance photo. robbed the Security National Bank in Springfield, Ohio. The four met before the robbery at Beverly’s apartment, where they prepared disguises, including masks and bandannas. They then drove together to Springfield in Warren’s tan First National Bank Lincoln Town Car. Once in Springfield, the four drove to a hospital, where Rogers stole a car to use as a getaway vehicle On July 28, 1995, Rogers, Warren and Turns drove to in the robbery. They found an alley behind some buildings Zanesville in Turns’s BMW. Once in Zanesville, the three across the street from the bank, where they parked the drove to a grocery store where Rogers stole a Buick to use as Lincoln. Rogers, Warren, Beverly, and Crockett entered the a get-away vehicle. Rogers and Warren took the stolen car to bank and Crockett, wearing a pair of pantyhose over his head, the bank, while Turns drove to a nearby school, their pre- jumped over the teller’s counter and ordered people to the arranged meeting place, and waited. Rogers and Warren floor. After robbing the bank, the four used the stolen car to entered the bank, both armed. After getting the money, they get to the alley where the tan Lincoln was parked. They all returned to Turns’s car and drove back to Columbus with left their disguises in the stolen car, which was later recovered $41,989. The get-away car was recovered by the police near by the police. The four escaped with $10,538.47. a school. As it turns out, that same car had been reported stolen from the grocery store where the three had allegedly During the robbery, bank surveillance cameras were stopped. In addition, a local resident spotted the BMW near working and took several photographs. Both Warren and the school during the relevant time period. She identified the Rogers were able to identify each other, as well as Beverly make and model, which matched a car that Turns had and Crockett, in the photos. The government contends that purchased on May 26, 1995 in Franklin County, Ohio for Beverly’s pose, disguise, choice of weapon, and use of his left $5,450. hand is almost identical in the May 18 and the May 12 robbery photos, and that Beverly’s revolver, which appears in On the day before the robbery, the balance of the bank the pictures, had the same characteristics as the gun recovered accounts of Lisa Dennis, Turns’s girlfriend, totaled $24.34. after the November 22, 1995 robbery of the Park National However, her account later showed a deposit made three days Bank in Hebron, Ohio. (See page 9, infra). The photographs after the First National Bank robbery of exactly $1,000. Two also show a man, identified as Beverly, wearing a “Columbia” days after the First National Bank robbery, Turns and Dennis hat with holes cut in it as a mask. This hat was later met with a real-estate agent and put a $5,000 down payment recovered from the abandoned stolen car. It was a hair from on a house. On August 2, 1995, Turns and Rogers purchased this hat that was sent to the lab for the mitochondrial DNA a Porsche in Turns’s name with $5,847.23 in cash. Neither test that was ultimately admitted into evidence at trial. Turns nor Dennis filed tax returns in 1994 or 1995.

On July 24, 1995, two months after this robbery, Crockett In the summer of 1995, Turns and his brother went to a gun purchased a 1984 Cadillac for $2,500. Yet, Crockett did not show with Rogers. They purchased several weapons there. report any income for the year 1995. As part of the bank Nos. 00-3617/3618/3741 United States v. 9 10 United States v. Nos. 00-3617/3618/3741 Beverly, et al. Beverly, et al.

Rogers testified to the fact it was their collective intention to Bank. While Crockett was in the car waiting with the door use these weapons in future robberies. open for Warren to come out of the bank, a car pulled into the bank parking lot. Crockett panicked and pulled away, leaving Warren without a means of escape. When Warren emerged from the bank and realized that Crockett had left, he stole a Huntington National Bank Cadillac. Only six days after robbing the First National Bank, on The chief of police saw the Cadillac pulling away from the August 3, 1995, Rogers, Turns, and Warren robbed the bank and left in pursuit, but he ended up losing Warren in the Huntington National Bank in Marysville, Ohio. Turns drove car chase. Eventually, the stolen Cadillac was recovered. them to Marysville in his BMW. Contrary to their usual Inside the car, the police found some of the money stolen practice, they did not steal a car to use as a get-away vehicle, from the bank and a .22-caliber revolver. The revolver turned but instead planned to steal a get-away car at the bank. Once out to be the same type of gun used by Beverly in the May 12 there, Turns dropped the other two off in an alley near the and May 18 robberies. The police later recovered a .38- bank and went to a pre-arranged place where they were to caliber bullet from the gun fired by Crockett at the tellers in meet after the robbery. Rogers and Warren robbed the bank, the bank. stole a vehicle, and met Turns at the pre-arranged spot. They abandoned the stolen vehicle and drove back to Columbus Rogers and Warren were taken into custody by the FBI in with their take of $79,500. August and December of 1995, respectively, partially as a result of information given to FBI Agent Trombitas by Turns. After the Huntington National Bank robbery there were Rogers and Warren eventually cooperated with the FBI, and more round-number deposits made to Lisa Dennis’s account. ultimately Turns, Beverly, and Crockett were indicted on Again, Turns described the robbery to the FBI in detail, July 20, 1999 and charged with conspiracy to commit armed without mentioning his involvement. bank robbery, committing various armed bank robberies, and for the possession of firearms during and in relation to these crimes of violence. Park National Bank in Hebron, Ohio On November 22, 1995, in Hebron, Ohio, Crockett and II Warren robbed the Park National Bank. Crockett and Warren both had guns when they entered the bank and both were The three defendants raise many issues, which we will wearing disguises. Warren identified both himself and consider in the following order. All three defendants join in Crockett in the bank surveillance video. After finding dye the Batson challenge, so we will deal with it first in Part III. packs in some of the money they had taken, Crockett began We then turn to the novel issue of Beverly’s challenge to the throwing the dye packs at the bank employees, who were admissibility of mitochondrial DNA evidence in Part IV. lying on the floor. Crockett also fired a shot near the tellers. Turns and Crockett each appeal the denial of their separate Crockett and Warren stole $30,577 from the Park National motions for acquittal, and these issues are dealt with in Nos. 00-3617/3618/3741 United States v. 11 12 United States v. Nos. 00-3617/3618/3741 Beverly, et al. Beverly, et al.

Part V. Turns raises three issues peculiar to his trial and In reviewing the government’s race-neutral explanation, we sentence, which we deal with in Part VI. Finally, Crockett need not find that the reason given is persuasive, or even raises a number of evidentiary issues and a claim of plausible. Ibid. However, the reason cannot be inherently prosecutorial misconduct, which we address in Part VII. discriminatory. Ibid. Furthermore, the district court has the responsibility to assess the prosecutor’s credibility under all of the pertinent circumstances, including the final make-up of the jury. We review that determination of fact for clear error. III United States v. Bartholomew, 310 F.3d 912, 919 (6th Cir. 2002). In this case, the prosecutor gave a plausible and race- Batson Challenge neutral explanation for exercising a peremptory challenge against Mrs. McKeever, which the district court accepted. Beverly, Crockett, and Turns claim that the prosecutor There was no evidence of discriminatory intent inherent in the exercised a peremptory challenge against a potential juror in government’s proffered explanation, and a peremptory a racially discriminatory manner, in violation of the Equal challenge is not unconstitutional solely because it has a Protection Clause. See Batson v. Kentucky, 476 U.S. 79 racially disproportionate impact. Hernandez v. New York, (1986) (prohibiting the exercise of race-based peremptory 500 U.S. 352, 359-60 (1991). Under these circumstances, the challenges). In this case, the prosecutor exercised a district court did not commit clear error in overruling the peremptory challenge to exclude a black woman from the jury Batson challenge. venire: Mrs. McKeever. Crockett objected to this challenge, noting that without Mrs. McKeever, there would not be any African-Americans on the jury. The prosecutor stated that he was using a peremptory challenge to remove Mrs. McKeever IV because she had a brother who had spent time in prison and also had a nephew in jail with whom she still had contact. The Admissibility of Mitochondrial DNA Testing district court found that the Government had articulated a legitimate nondiscriminatory reason for the challenge and Beverly, against whom mitochondrial deoxyribonucleic permitted Mrs. McKeever’s removal. acid (mtDNA) testing was used in this trial, argues that the district court erred in admitting expert testimony concerning A Batson claim is analyzed in three steps. First, the mtDNA evidence. Specifically, Beverly argues that mtDNA defendant must make a prima facie showing that the testing is not scientifically reliable because the laboratory that prosecutor removed a potential juror for a discriminatory did the testing in this case was not certified by an external reason. If the defendant makes this showing, the second step agency, the procedures used by the laboratory “sometimes requires the prosecutor to articulate a nondiscriminatory yielded results that were contaminated,” and the particular reason for the removal. Assuming that the prosecutor does tests done in this case were contaminated. In addition, so, the third step requires the trial court to determine whether Beverly argues that even if the mtDNA evidence is the opponent of the peremptory strike has proven purposeful determined to be sufficiently reliable, its probative value is discrimination. See, e.g., United States v. Lucas, 357 F.3d substantially outweighed by its prejudicial effect. In this part 599, 609 (6th Cir. 2004). of his argument, Beverly focuses on the statistical analysis Nos. 00-3617/3618/3741 United States v. 13 14 United States v. Nos. 00-3617/3618/3741 Beverly, et al. Beverly, et al.

presented, which he claims to have artificially enhanced the and maintenance of standards and controls; and 5) whether probative value of the mtDNA evidence. According to the technique or theory has been generally accepted in the Beverly, Dr. Melton, the government’s expert, should only scientific community. Daubert, 509 U.S. at 592-95; have been allowed to testify that Beverly could not be Hardyman v. Norfolk & W. Ry., 243 F.3d 255, 260 (6th Cir. excluded as the source of the sample in question. 2001). If the evidence is deemed to be reliable and relevant, the judge must then determine if the probative value of the We review the district court’s decision to admit expert evidence is outweighed by its prejudicial effect. Daubert, 509 testimony for an abuse of discretion. Kumho Tire Co. v. U.S. at 595. Carmichael, 526 U.S.137,152 (1999); First Tenn. Bank Nat. Ass’n v. Barreto, 268 F.3d 319, 331 (6th Cir. 2001). 1. Mitochondrial DNA Testing in General Federal Rule of Evidence 702 sets forth the requirements Before discussing the particular circumstances of this case, for the admissibility of expert testimony as follows: it may be helpful to provide some general background concerning mtDNA analysis. Generally speaking, every cell If scientific, technical, or other specialized knowledge contains two types of DNA: nuclear DNA, which is found in will assist the trier of fact to understand the evidence or the nucleus of the cell, and mitochondrial DNA, which is to determine a fact in issue, a witness qualified as an found outside of the nucleus in the mitochondrion. The use expert by knowledge, skill, experience, training, or of nuclear DNA analysis as a forensic tool has been found to education, may testify thereto in the form of an opinion be scientifically reliable by the scientific community for more or otherwise, if (1) the testimony is based upon sufficient than a decade. The use of mtDNA analysis is also on the rise, facts or data, (2) the testimony is the product of reliable and it has been used extensively for some time in FBI labs, as principles and methods, and (3) the witness has applied well as state and private crime labs. See, e.g., Micah A. the principles and methods reliably to the facts of the Luftig & Stephen Richey, Symposium: Serenity Now or case. Insanity Later?: The Impact of Post-Conviction DNA Testing on the Criminal Justice System: Panel One: The Power of The wording of the rule reflects the now-standard inquiry set DNA, 35 New Eng. L. Rev. 609, 611 (2001). This technique, out in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 which generally looks at the differences between people’s U.S. 579 (1993), which is the basis on which the district court mitochondrial DNA, has some advantages over nuclear DNA analyzed the expert testimony given in this case. See Nelson analysis in certain situations. For example, while any given v. Tenn. Gas Pipeline Co., 243 F.3d 244, 250 n.4 (6th Cir.), cell contains only one nucleus, there are a vast number of cert. denied, 534 U.S. 822 (2001). Therefore, we review this mitochondria. As a result, there is a significantly greater case under Daubert, which set forth a non-exclusive checklist amount of mtDNA in a cell from which a sample can be of factors for trial courts to use in assessing the reliability of extracted by a lab technician, as compared to nuclear DNA. scientific expert testimony. These include 1) whether the Thus, this technique is very useful for minute samples or expert’s scientific technique or theory can be, or has been, ancient and degraded samples. Ibid. In addition, tested; 2) whether the technique or theory has been subject to mitochondrial DNA can be obtained from some sources that peer review and publication; 3) the known or potential rate of nuclear DNA cannot. For example, mtDNA can be found in error of the technique or theory when applied; 4) the existence shafts of hair, which do not have a nucleus, but do have Nos. 00-3617/3618/3741 United States v. 15 16 United States v. Nos. 00-3617/3618/3741 Beverly, et al. Beverly, et al.

plenty of mitochondria. Nuclear DNA can only be retrieved more people who will have the same mtDNA pattern, and from the living root of the hair where the nucleus resides. vice-versa. However the figures presented to the jury were United States v. Coleman, 202 F. Supp. 2d 962, 965 (E.D. from a database of actual DNA patterns collected by forensic Mo. 2002) (accepting expert testimony by Dr. Melton, the scientists. The mechanics of the analysis involves a process expert in this case, and admitting evidence based on mtDNA similar to that used with nuclear DNA. Coleman, 202 F. testing). Supp.2d at 969. On the other hand, mtDNA is not as precise an identifier as This court has not until now had the opportunity to rule on nuclear DNA. In the case of nuclear DNA, half is inherited the admissibility of mtDNA testing. However, mtDNA from the mother and half from the father, and each individual, testing has been admitted into evidence by several state courts with the exception of identical twins, almost certainly has a and has been upheld on review. See, e.g., State v. unique profile. MtDNA, by contrast, is inherited only from Underwood, 518 S.E.2d 231 (N.C. Ct. App. 1999); State v. the mother and thus all maternal relatives will share the same Scott, 33 S.W.3d 746 (Tenn. 2000); State v. Council, 515 mtDNA profile, unless a mutation has occurred. Ibid. S.E.2d 508 (S.C. 1999); People v. Klinger, 713 N.Y.S. 2d 823 Because it is not possible to achieve the extremely high level (N.Y. Crim. Ct. 2000); Williams v. Maryland, 679 A.2d 1106 of certainty of identity provided by nuclear DNA, mtDNA (Md. 1996). typing has been said to be a test of exclusion, rather than one of identification. Id. at 966. 2. Mitochondrial DNA in this Case

The entire mtDNA sequence, about sixteen thousand base The district court in this case held a very extensive hearing pairs, is considerably shorter than nuclear DNA, which has in order to determine the admissibility of mtDNA evidence at approximately three billion pairs. Within the mtDNA, two trial. The court determined that the techniques had been noncoding regions are targeted – Hypervariable-1 (HV1) and established and accepted by the scientific community, Hypervariable-2 (HV2). Each of these regions is about 300 accepted by the courts, and had been subject to peer review. letters in code length and is a region that has a mutation rate Beverly now argues that the district court abused its five to ten times greater than that of nuclear DNA. Usually discretion on the basis of three objections. there is a one to two percent variance of mtDNA sequence between unrelated individuals. Luftig & Richey, supra, at Beverly argues that Dr. Melton’s laboratory, which had 612. It has been estimated that mutation within the mtDNA analyzed the sample in this case, has never been certified by control region is one nucleotide difference every 300 an external agency. This point was raised in the pretrial generations. National Commission on the Future of DNA hearing, and, although there is no legal requirement that Evidence, The Future of Forensic DNA Testing: Predictions Dr. Melton’s lab be so certified, the district court did question of the Research and Development Working Group 7, Nat’l Dr. Melton on this point. Laboratories doing DNA forensic Inst. of Justice (2000). But see Ann Gibbons, Calibrating the work are accredited through the American Society of Crime Mitochondrial Clock, 279 Science 28 (1998) (discussing Laboratory Directors. However, Dr. Melton’s lab, having research estimating that mutations occur as frequently as only been actively engaged in case work for about 11 months every 40 generations). This academic dispute does not affect at the time of the trial, was not yet able to apply for the this case directly. In general, the slower the mutation rate, the accreditation, but was expected to go through the process the Nos. 00-3617/3618/3741 United States v. 17 18 United States v. Nos. 00-3617/3618/3741 Beverly, et al. Beverly, et al.

following spring. Furthermore, Dr. Melton’s own credentials separately considered the scientific reliability of the statistical are considerable. Not only has she been working with analysis offered by the government, concluding that: mtDNA since 1991, she has a Ph.D from Pennsylvania State University in genetics; her thesis investigated mitochondrial The predictive effect of the statistical analysis is based DNA as it would apply to forensic applications. In addition, upon a formula which is apparently recognized in the Dr. Melton has published a significant amount of work in this scientific community and used in a variety of scientific field. contexts, and it has been used specifically here in the analysis of mitochondrial DNA results. The Court Next, Beverly argues that Dr. Melton’s procedures would concludes that it’s an accepted and reliable estimate of sometimes yield results that were contaminated, and that probability, and in this case, it led to results, interpreted furthermore, the sample analyzed in this particular case was results, which substantially increase the probability that contaminated. Testimony given by Dr. Melton and the hair sample is the hair of the defendant in this case. Dr. Kessis, who was Beverly’s expert at trial, supported Beverly’s general contention, but no evidence demonstrated Based on the record compiled in the district court’s careful that any contamination in this case affected the results of the and extensive hearing on this issue, there was no abuse of analysis. Dr. Melton testified that “[we] occasionally have discretion in admitting the mtDNA testing results. The what we call sporadic contamination,” probably as a result of scientific basis for the use of such DNA is well established. residue on a piece of equipment brought into the lab. Any issues going to the conduct of the specific tests in However, Dr. Melton was confident that no contamination of question were fully developed and subject to cross the sample itself had occurred. The reagent blank in the test examination. There was no error in finding that the testing of the sample itself did not show any indication of methods, and Dr. Melton’s testing in particular, were contamination, in contrast to a separate reagent blank, used in sufficiently reliable to be admissible. Finally, the a different test tube, which was a control in the experiment. mathematical basis for the evidentiary power of the mtDNA Therefore, the actual data relied upon in this case, obtained evidence was carefully explained, and was not more from the sequencing machine, did not indicate any presence prejudicial than probative. of a contaminant. It was made clear to the jury that this type of evidence Finally, the district court carefully considered during the could not identify individuals with the precision of pretrial hearing the question of whether the relevance of this conventional DNA analysis. Nevertheless, any particular evidence outweighed its probative value. In particular, mtDNA pattern is sufficiently rare, especially when there is Beverly argued that the jury would associate mitochondrial no contention that the real culprit might have been a DNA analysis with nuclear DNA analysis and give it the matrilineal relative of the defendant, that it certainly meets the same value, in terms of its ability to “fingerprint” a suspect. standard for probative evidence: “any tendency to make the The district court, however, decided that this issue was more existence of any fact that is of consequence to the appropriately dealt with through a vigorous cross- determination of the action more probable or less probable examination, and in fact that was exactly what occurred at than it would be without the evidence.” Fed. R. Evid. 401. trial. Moreover, the court noted the important probative value The statistical evidence at trial showed that, at most, less than that this evidence added to the trial. Finally, the court 1% of the population would be expected to have this mtDNA Nos. 00-3617/3618/3741 United States v. 19 20 United States v. Nos. 00-3617/3618/3741 Beverly, et al. Beverly, et al.

pattern. Even an article critical of mtDNA stated the most may sustain a conviction under this deferential standard of frequent pattern applies in no more than 3% of the population. review.” United States v. Adams, 265 F.3d 420, 423 (6th Cir. Erica Beecher-Monas, The Heuristics of Intellectual Due 2001) (citations omitted). Process: A Primer for Triers of Science, 75 N.Y.U.L. Rev. 1563, 1655 n.535 (2000). It would be unlikely to find a 1. Crockett match between Beverly’s hair and the hair of a random individual. The testimony was that, with a high degree of Crockett contends that there is insufficient evidence in the confidence, less than one percent of the population could be record to establish that he was involved in a conspiracy to expected to have the same pattern as that of the hair recovered commit bank robberies as set forth in Count One of the from the bank robbery site, and that Beverly did have the indictment. To establish a conspiracy, in violation of 18 same pattern, and thus could not be excluded as the source of U.S.C. § 371, the government must prove beyond a the hair. Finding Beverly’s mtDNA at the crime scene is reasonable doubt that there was “an agreement between two essentially equivalent to finding that the last two digits of a or more persons to act together in committing an offense, and license plate of a car owned by defendant matched the last an overt act in furtherance of the conspiracy.” United States two numbers of a license plate of a getaway car. It would be v. Crossley, 224 F.3d 847, 856 (6th Cir. 2000) (quoting some evidence — not conclusive, but certainly admissible. United States v. Milligan, 17 F.3d 177, 182 (6th Cir. 1994)). We find the same here. This requirement has been broken down into a four-part test, which requires the government to prove that: “1) the conspiracy described in the indictment was wilfully [sic] formed, and was existing at or about the time alleged; 2) the V accused willfully [sic] became a member of the conspiracy; 3) one of the conspirators thereafter knowingly committed at Motion for Acquittal least one overt act charged in the indictment at or about the time and place alleged; and 4) that overt act was knowingly During the trial, at the close of the government’s case and done in furtherance of some object or purpose of the again at the close of all evidence, both Turns and Crockett conspiracy as charged.” United States v. Kraig, 99 F.3d made a Rule 29(a) motion for acquittal. On both occasions 1361, 1368 (6th Cir. 1996). The government need not show the district court denied their motions, and both defendants a formal written agreement; a simple understanding between now appeal that decision. the parties will suffice. United States v. Clayton, 357 F.3d 560, 573 (6th Cir. 2004). Nor does “every member of a The relevant question in assessing a challenge to conspiracy [need to be] an active participant in every phase of evidentiary sufficiency is “whether, after viewing the the conspiracy.” United States v. Christian, 786 F.2d 203, evidence in the light most favorable to the prosecution, any 211 (6th Cir. 1986) (quoting United States v. Cuni, 689 F.2d rational trier of fact could have found the essential elements 1353, 1356 (11th Cir. 1982)). The defendant need only of the crime beyond a reasonable doubt.” Jackson v. Virginia, “know of the conspiracy, associate himself with it and 443 U.S. 307, 319 (1979) (emphasis in original). See also knowingly contribute his efforts in its furtherance.” United United States v. Sykes, 292 F.3d 495, 498-99 (6th Cir. 2002). States v. Barger, 931 F.2d 359, 369 (6th Cir. 1990) (quoting “Circumstantial evidence alone, if substantial and competent, United States v. Luxenberg, 374 F.2d 241, 250 (6th Cir. Nos. 00-3617/3618/3741 United States v. 21 22 United States v. Nos. 00-3617/3618/3741 Beverly, et al. Beverly, et al.

1967)). “A conspiracy may be inferred from circumstantial drawn in the government’s favor. United States v. Kelly, 204 evidence that can reasonably be interpreted as participation in F.3d 652, 656 (6th Cir. 2000). The jury obviously accepted the common plan.” Ibid. (quoting United States v. Strong, the testimony of Warren and Rogers. Moreover, Turns 702 F.2d 97 (6th Cir. 1983)). provided the FBI with a detailed account of the robberies, his gun was found with two of the robbers, he provided false The government presented a considerable amount of identification to a co-conspirator, and he made several evidence establishing Crockett’s active participation in the purchases and bank deposits directly after three of the conspiracy, particularly through the testimony of Rogers and robberies to which he was linked. The evidence against Turns Warren. For example, both Rogers and Warren testified to was sufficient for a rational trier of fact to have found Turns Crockett’s participation in the robbery at the Security guilty. National Bank, specifically describing his participation in creating disguises used during the robbery and in conducting the robbery itself. In addition, there was photographic evidence of his presence at the Security National Bank. VI Warren also testified to Crockett’s participation in the robbery of the Park National Bank in Hebron. There also was A. Severance of Turns’s Trial evidence that Crockett fired his gun during the course of that robbery, as a bullet matched to his gun was recovered from a Turns contends that the district court should not have joined file cabinet in the bank. A rational trier of fact could have his trial with Beverly’s and Crockett’s. Turns argues that the reasonably relied upon any of this evidence to find that alleged conspiracy between Rogers, Warren, and Turns was Crockett was a willing participant in the conspiracy charged entirely separate from the alleged conspiracy that existed in Count One of the indictment. between Rogers, Warren, and Crockett that, according to Turns, dominated in this case. We do not find this argument 2. Turns persuasive.

Turns argues that the government's evidence was Rule 8(b) of the Federal Rules of Criminal Procedure insufficient because “the credibility of Rogers and Warren is permits two or more defendants to be charged in the same suspect to the point that reasonable minds should reject their indictment “if they are alleged to have participated in the testimony as a matter of law.” Turns’s Brief at 24. However, same act or transaction or in the same series of acts or determining the credibility of witnesses is a task for the jury, transactions constituting an offense or offenses.” All of the not this court. See United States v. Hilliard, 11 F.3d 618, 620 defendants committed bank robberies with Rogers and (6th Cir. 1993) (noting that this court does not weigh Warren during the course of the conspiracy and their evidence, make credibility determinations, or substitute its testimony was admissible against all of the defendants, judgment for that of the jury). In reviewing the denial of a including Turns. The robberies were a series of offenses that motion for acquittal, we must “refrain from independently were conducted over a relatively short period of time and judging the credibility of witnesses or [the] weight of the performed using a similar pattern of behavior. The district evidence.” United States v. Walls, 293 F.3d 959, 967 (6th court, therefore, did not err in joining the trial of Turns with Cir. 2002). Moreover, all reasonable inferences are to be that of Crockett and Beverly. Nos. 00-3617/3618/3741 United States v. 23 24 United States v. Nos. 00-3617/3618/3741 Beverly, et al. Beverly, et al.

Turns relies on United States v. Hatcher, 680 F.2d 438, 441 also United States v. Critton, 43 F.3d 1089, 1097-98 (6th Cir. (6th Cir. 1982), in which this court held that the joinder of 1995) (“Rule 14 allows for severance if it appears that a two defendants was improper under Rule 8(b). In Hatcher, defendant or the government is prejudiced by a joinder of both defendants, Manetas and Hatcher, were jointly indicted offenses or of defendants.”) (internal quotation marks for federal narcotics crimes. Although both defendants had omitted). We review a denial of severance by the district been charged with three counts relating to the possession and court for a clear abuse of discretion. United States v. Causey, distribution of heroin, one of the defendants had also been 834 F.2d 1277, 1287 (6th Cir. 1987). Furthermore, a strong charged with three counts relating to the possession and policy presumption exists in favor of joint trials when charges distribution of cocaine in an entirely unrelated series of will be proved by the same evidence and result from the same offenses. This court held that since there was “no connection acts. See United States v. Hamilton, 689 F.2d 1262, 1275 (6th between Manetas and the cocaine-related charges against Cir. 1982). Hatcher,” the joinder of the two defendants was improper. Ibid. The court further noted that “[t]he joinder of multiple Turns argues that his trial was prejudiced by being joined defendants is proper under Rule 8(b) only if each of the with the other defendants since the credibility of the counts of the indictment arises out of the same act or testimony of Rogers and Warren, the government witnesses transaction or series of acts or transactions . . . .” Ibid. who placed Turns at the scene of the crime, was bolstered by additional pieces of incriminating and corroborating evidence The case before us now is distinguishable from Hatcher, in the case against Beverly and Crockett. For example, in because each bank robbery can easily be viewed as part of Crockett’s case, the government presented a photograph taken one ongoing set of transactions, linked together by Rogers during one of the bank robberies, which was purported to be and Warren. Furthermore, we have held that “a group of acts of Crockett while he was in the process of robbing the bank. or transactions constitutes a ‘series’ if they are logically In Beverly’s case, there was mtDNA evidence presented that interrelated,” and that a “group of acts or transactions is linked Beverly to one of the robberies. These pieces of logically interrelated, for instance, if the acts or transactions evidence corroborated the testimony given by Rogers and are part of a common scheme or plan.” See United States v. Crockett, although the evidence would have been Johnson, 763 F.2d 773, 776 (1985) (noting that several other inadmissible in a trial focused solely on Turns. circuits have held similarly and citing United States v. Corbin, 734 F.2d 643, 649 (11th Cir. 1984); United States v. Turns’s contention that Rogers’s and Warren’s testimony Cavale, 688 F.2d 1098, 1106 (7th Cir. 1982); United States v. was bolstered during the trial by corroborating evidence Ford, 632 F.2d 1354, 1371-72 (9th Cir. 1980)). Given the presented in the case against Beverly and Crockett is common scheme involved in this case, the district court did unpersuasive. We have stated in Causey, 834 F.2d at 1288, not abuse its discretion in joining Turns’s trial with that of that “a defendant is not entitled to severance simply because Beverly and Crockett, pursuant to Rule 8(b). the evidence against a co-defendant is far more damaging than the evidence against him.” Moreover, a defendant does Turns also argues that the district court erred in denying his not have a right to a separate trial, merely because his motion to sever the trial, brought under Rule 14 of the Federal likelihood of acquittal would be greater if severance were Rules of Criminal Procedure. Severance of a joint trial is granted. See United States v. Gallo, 763 F.2d 1504, 1526 (6th permitted, if joinder is prejudicial. Fed. R. Crim. P. 14; see Cir. 1985) (citing United States v. Stirling, 571 F.2d 708, 733 Nos. 00-3617/3618/3741 United States v. 25 26 United States v. Nos. 00-3617/3618/3741 Beverly, et al. Beverly, et al.

(2d Cir. 1978); United States v. Larson, 526 F.2d 256, 260 Turns’s Counsel: Isn’t it always important when the (5th Cir. 1976)). “Absent a showing of substantial prejudice, government is trying to prove a case against somebody spillover of evidence from one case to another does not what somebody’s motive is? require severance.” Ibid. (citing United States v. Ricco, 549 F.2d 264, 270-71 (2d Cir. 1977)). Turns has not made a The Court: What the motive is is the motive for the showing of substantial prejudice in this case, and thus the bank robberies and the conspiracy. district court did not abuse its discretion by denying Turns’s motion for severance. The district court subsequently sustained the objection. Later in the trial, during Turns’s cross-examination of Rogers, Turns’s counsel again tried to question Rogers about his alleged sexual assault of Turns’s daughter. This time, B. The Cross-Examination of Anthony Rogers however, Turns’s counsel noted that he wished to question Rogers on this point in order to prove bias: to show that the Turns contends that the district court abused its discretion abuse of Turns’s daughter related to why Rogers was by not allowing him to question Rogers on cross-examination appearing as a government witness against Turns. The about his alleged attempt to sexually molest Turns’s twelve- district court again decided that the testimony was year-old daughter. We review a trial court’s rulings on the inadmissible, stating in relevant part: scope of cross-examination for an abuse of discretion. United States v. Chance, 306 F.3d 356, 385 (6th Cir. 2002). I am going to adhere to my original ruling. This would be injecting a matter that’s entirely collateral to the issues At trial, during his opening statement, Turns’s counsel here, not relevant in any way, and extremely prejudicial stated that “Mr. Rogers is not a very nice person, that he to the government. So I am going to adhere to my earlier attempted to molest my client’s twelve-year old daughter. ruling, and you’re not permitted to ask such questions. She was twelve-years old at the time . . . .” The government objected at this point, arguing that this information was Later, when the issue was raised again, defense counsel told irrelevant and therefore inadmissible. Turns’s counsel the court that he would specifically like to ask Rogers: “Isn’t responded that the information was crucial to Turns’s defense it true that you knew Doug Turns was aware of your sexual and that it was “not being offered for impeachment purposes.” misconduct with his daughter, and that’s why you falsely Defense counsel went on to explain that this information was accused him of these bank robberies?” Before ruling on relevant to Turns’s motivation for going to the FBI and whether this question could be asked, the court asked counsel providing information on Rogers and Warren. The district if he had any information indicating that Mr. Rogers was court questioned Turns’s counsel further as follows: aware of Turns’s accusations, to which Turns’s counsel responded that he did not. Again, the court ruled that this line The Court: Again, what difference does it make what of questioning was improper. The jury heard about the his motive was in going to the FBI? allegation when Turns testified himself that Rogers had molested his daughter, which prompted him to turn Rogers in to the FBI. Turns now argues that the district court committed constitutional error in denying Turns the ability to prove bias. Nos. 00-3617/3618/3741 United States v. 27 28 United States v. Nos. 00-3617/3618/3741 Beverly, et al. Beverly, et al.

The trial court has broad discretion regarding the scope of conviction that Rogers had molested his daughter during his cross-examination. United States v. Mohney, 949 F.2d 1397, own testimony. 1409 (6th Cir. 1991). Yet, as pointed out by Turns in his brief, the Supreme Court has noted that the “cross- examination of a witness is a matter of right.” Alford v. United States, 282 U.S. 687, 691 (1931). Furthermore, the C. Turns’s Sentence Court has subsequently stated that “[c]ross-examination is the principal means by which the believability of a witness is Turns argues that his sentence of 858 months, or 71 1/2 subject to exploration at trial, and is ‘always relevant as years, largely mandated by the requirement of consecutive discrediting the witness and affecting the weight of his sentencing under 18 U.S.C. § 924(c), is cruel and unusual testimony.’” Davis v. Alaska, 415 U.S. 308, 316 (1974) punishment, in violation of the Eighth Amendment. In (holding that precluding a defendant from cross-examining a particular, Turns argues that his sentence is “grossly key prosecution witness to show bias violated the defendant’s disproportionate” to his crime of having driven the getaway constitutional right to confront the witness testifying against car in four bank robberies and provided false identification him). However, the right to cross-examine is not absolute. documents, especially given that he had no prior criminal United States v. Atisha, 804 F.2d 920, 929-30 (6th Cir. 1986). record and supplied critical information to the FBI about the Trial judges have latitude to “impose reasonable limits on crimes during its investigation. such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, Since a constitutional challenge to a sentence raises a the witness’ safety, or interrogation that is repetitive or only question of law, we review Turns’s claim de novo. United marginally relevant.” United States v. Blakeney, 942 F.2d States v. Flowal, 163 F.3d 956, 963 (6th Cir. 1998). Turns 1001, 1022 (6th Cir. 1991) (emphasis omitted). See also relies principally on the Supreme Court case of Enmond v. United States v. Broadus, 7 F.3d 460, 465 (6th Cir. 1993). Florida, 458 U.S. 782 (1982), in which the Court vacated a death sentence that had been imposed on the driver of a In this case the trial court did not abuse its discretion in getaway car in a double murder. In Enmond, the Court ruling that this information was inadmissible, as it was only reasoned that the sentence did not serve the “two principal marginally relevant and highly prejudicial. It was not purposes” that the death penalty is intended to serve: obviously relevant for purposes of demonstrating bias, retribution and deterrence. Id. at 798. The Court reasoned because even if Rogers had sexually molested Turns’s child, that since the defendant “did not kill or attempt to kill” the there was no evidence that Rogers had ever been accused of victims, his “culpability [was] plainly different from that of doing so, or knew that anyone suspected him of committing the robbers who killed,” and thus the sentence did not serve such an offense. Unless Rogers had been confronted, there the goal of retribution. Ibid. Furthermore, the defendant “did would be no reason for him to be particularly biased against not [have] any intention of participating in or facilitating a Turns. The information more accurately explains why Turns murder,” and “it seems likely that ‘capital punishment can would be biased against Rogers, and that is irrelevant to this serve as a deterrent only when murder is the result of inquiry. Any evidence of such a heinous act is likely to be premeditation and deliberation.’” Id. at 799 (quoting Fisher prejudicial. Furthermore, any error in the district court’s v. United States, 328 U.S. 463, 484 (1946) (Frankfurter, J. ruling would be harmless, since Turns shared his personal dissenting)). Finally, “[u]nless the death penalty when Nos. 00-3617/3618/3741 United States v. 29 30 United States v. Nos. 00-3617/3618/3741 Beverly, et al. Beverly, et al.

applied to those in Enmund’s position measurably contributes This court has addressed a similar claim in an unpublished to one or both of these goals, it ‘is nothing more than the decision. United States v. Clark, 41 Fed. Appx. 745 (6th Cir. purposeless and needless imposition of pain and suffering,’ 2002). A defendant argued that his thirty-two-year sentence and hence an unconstitutional punishment.” Id. at 798 for two convictions under 18 U.S.C. § 924(c) violated the (quoting Coker v. Georgia, 433 U.S. 584, 592 (1977)). Eighth Amendment’s prohibition on cruel and unusual punishment. The panel addressed the merits of the The “narrow proportionality principle,” means that only defendant’s claim, even though it did not appear that his “extreme sentences that are grossly disproportionate to the counsel had raised this issue at the sentencing hearing, which crime are prohibited.” Flowal, 163 F.3d at 963-64. A would ordinarily preclude review, stating that it was “satisfied plurality of the Court rejected the defendant’s assertion that that the Eighth Amendment did not bar [the defendant’s] his life term without parole was disproportionate because it sentence.” Id. at 751. The court also took note of the fact that was his first felony conviction. Harmelin v. Michigan, 501 in a similar challenge, the Ninth Circuit had held that a U.S. 957, 994 (1991). Instead, the Court observed that the defendant’s sentence based on his conviction under 18 U.S.C. defendant had been convicted of possession of more than 650 § 924(c), which accounted for twenty-five years of his total grams of cocaine and held that Michigan could determine that sentence, was not cruel and unusual. Ibid. (citing United the seriousness of the offense warranted the severe sentence. States v. Parker, 241 F.3d 1114, 1117-18 (9th Cir. 2001)). Id. at 990. In this case, although the length of time to be served by Here, too, Turns has never been convicted of a felony Turns, as required by 18 U.S.C. § 924(c), is severe, it would before. However, he was convicted of participating in four appear to serve the twin goals of retribution and deterrence, separate armed bank robberies. Even though his role was to without being grossly disproportionate to the several offenses drive the getaway car, he was fully aware of the crime he was committed. The Supreme Court has never held that a participating in and thus his culpability is not diminished. sentence to a specific term of years, even if it might turn out Furthermore, at least one of the guns used in the course of the to be more than the reasonable life expectancy of the robberies was traced back to Turns, who had purchased it in defendant, constitutes cruel and unusual punishment. See 1993 and had given it to Rogers. Turns was sentenced to five Harmelin, 501 U.S. at 996. In the absence of such guidance, years for the first of four counts of armed bank robbery we see no principle on which such a result could be based, brought pursuant to 18 U.S.C. § 2113 (a) and (d) and to and we decline to establish such a principle here. But see twenty years for the remaining three counts, to run Ramirez v. Castro, No. 02-56066, 2004 WL 868517 (9th Cir. consecutively. No one of these sentences is intrinsically Apr. 19, 2004) (holding 25 years-to-life sentence for three “grossly disproportionate” to the crime of armed bank shoplifting convictions, two of which occurred in 1991, robbery. Mandating consecutive sentences is not an violated the Eighth Amendment). unreasonable method of attempting to deter a criminal, who has already committed several offenses using a firearm, from doing so again. See Harmelin, 501 U.S. at 994 (stating that mandatory penalties are not “unusual in the constitutional sense”). Nos. 00-3617/3618/3741 United States v. 31 32 United States v. Nos. 00-3617/3618/3741 Beverly, et al. Beverly, et al.

VII Parks began to cry. Upon Trombitas’s request, Mrs. Parks turned over the photograph and placed her name, the date, and A. Pretrial Identification Crockett’s name on the back of the photograph. Judge Graham ruled that, based upon the totality of the Crockett appeals the district court’s decision to admit into circumstances, the photographic identification procedure was evidence the pretrial identification of Crockett by Mrs. Parks, sufficiently reliable to permit the witness to testify. who was his wife when he was arrested, but not when he committed the offense for which he was identified. In Later on, at trial, the government represented to the court addition, Crockett appeals the district court’s admission of that the FBI and the postal investigative service had “gone to FBI Agent Trombitas’s testimony, as it pertained to the great lengths” to try to serve Mrs. Parks with no success. As identification made by Mrs. Parks. a result, the prosecution sought to introduce this pretrial identification through Agent Trombitas’s testimony. Crockett Following Crockett’s arrest in July 1999, FBI Agent objected on the ground that this was hearsay. However, the Trombitas went to Crockett’s home in order to interview court agreed with the government that Mrs. Parks’s Crockett’s wife, Mrs. Parks. Trombitas first informed Mrs. identification, based on Trombitas’s testimony, was Parks that her husband had been arrested earlier in the day for admissible as an excited utterance, an exception to the his involvement in several bank robberies. Agent Trombitas hearsay rule. then showed her a photograph that was taken during the bank robbery at the Security National Bank, which occurred on Ultimately, after Trombitas had given his testimony, Mrs. May 18, 1995, approximately two years before Crockett and Parks testified at the trial. She recanted her identification of Mrs. Parks were married, but nevertheless during their Crockett, although she admitted that she had told Agent acquaintance. Mrs. Parks identified the man that Trombitas Trombitas when he interviewed her after Crockett’s arrest, pointed to in the photograph as her husband. that the picture “kind of looked like Johnny.” The government sought to admit this pretrial identification 1. Admission of the Pretrial Identification. at trial and Crockett filed a motion to suppress. As a result, Judge Graham held a pretrial hearing on the admissibility of We review the denial of a motion to suppress identification Mrs. Parks’s identification. At the pretrial hearing, Trombitas evidence for clear error. United States v. Hamilton, 684 F.2d testified as to the circumstances under which the 380, 383 (6th Cir. 1982). The burden rests on Crockett to identification was made. Trombitas explained that he took demonstrate that the pretrial identification procedure was out the photograph, placed it in front of her and asked, “do impermissibly suggestive. United States v. Hill, 967 F.2d you recognize that person there?” According to Trombitas, 226, 230 (6th Cir. 1992). If Crockett can demonstrate that the Mrs. Parks picked up the photograph, and with one hand on police performed an unduly suggestive photographic lineup, her mouth, said “oh, my God, that looks like Johnny.” At that then the trial court must determine, in light of all the point, Trombitas noticed her eyes tearing up and asked her to circumstances, whether the unfair suggestiveness was reaffirm the identification, saying: “so that looks like conducive to a “very substantial likelihood of irreparable Johnny?” Ibid. Mrs. Parks responded “yes, it does, it’s him, misidentification.” Simmons v. United States, 390 U.S. 377, and I’m not going to lie for him.” Ibid. At this point, Mrs. 384 (1968); Hill, 967 F.2d at 230. The Supreme Court has Nos. 00-3617/3618/3741 United States v. 33 34 United States v. Nos. 00-3617/3618/3741 Beverly, et al. Beverly, et al.

listed factors that a court should weigh in determining photo. See also United States v. Borelli, 621 F.2d 1092 (10th whether an identification is reliable, even though an unduly Cir. 1980) (holding that a trial court did not abuse its suggestive identification procedure may have been used. discretion by admitting into evidence identification testimony These factors are: 1) the witness’s opportunity to view the of defendant’s stepfather who recognized the defendant in a criminal at the time of the crime; 2) the witness’s degree of bank surveillance photo). attention, 3) the accuracy of the witness’s prior description of the criminal; 4) the level of certainty demonstrated at the In this case, although Mrs. Parks was provided with only a confrontation; and 5) the time between the crime and the single photograph, it was not presented in a suggestive confrontation. Neil v. Biggers, 409 U.S. 188, 198-200 (1972) manner. She was not asked “is this your husband?” The (stating that the “likelihood of misidentification . . . violates identification was not likely to have produced a a defendant's right to due process,” not a suggestive line-up misidentification, given Mrs. Parks’s familiarity with the per se). defendant at the time when the picture was taken. Furthermore, given her relationship to the defendant, she Before ruling on the admissibility of this evidence, the would be unlikely to be biased against him, and would have district court in this case carefully considered the reliability of every reason not to identify Crockett to the authorities, if the identification. The judge noted that there was only one there was any doubt. The district court, therefore, did not photograph, that the witness did not observe the offense, but commit clear error in denying Crockett’s motion to suppress was certainly familiar with the suspect, and that the this pretrial identification. photograph was of “very good quality . . . clearly portray[ing Crockett’s] facial features, as well as all of the other 2. Excited Utterance. characteristics of his physical anatomy.” Although these observations are not necessarily helpful in evaluating all of The district court separately analyzed the question of the Biggers factors outlined above, they do properly address whether Agent Trombitas would be allowed to testify about the question of reliability, the fundamental inquiry. the statements made by Mrs. Parks during his interview, in which she identified Crockett as one of the men in the bank This was not a typical police photo spread in which a surveillance photo. It is undisputed that Trombitas’s witness is asked identify an otherwise-unknown perpetrator testimony with regard to Mrs. Parks’s identification of based solely on observation at the time of the crime. In this Crockett was hearsay; what is disputed is whether the instance, Mrs. Parks was being asked whether the bank comments were “excited utterances” and therefore within an surveillance picture in fact depicted someone she knew very exception to the hearsay rule. Federal Rule of Evidence well and would readily recognize. The Biggers factors are not 803(2) provides that “a statement relating to a startling event particularly helpful in a case such as this, where the or condition made while the declarant was under the stress of identification has been made by someone close to the suspect. excitement caused by the event or condition” is not barred by Rather, we should be guided by cases in which identifications the hearsay rule. The excited utterance rule requires that have been made by relatives or close friends. United States 1) there be an event startling enough to cause nervous v. Saniti, 604 F.2d 603 (9th Cir. 1979), held that two excitement; 2) the statement be made before there is an roommates of the accused could properly be permitted to opportunity to contrive or misrepresent; and 3) the statement identify the defendant as the person in a bank surveillance be made while the person in under the stress of the excitement Nos. 00-3617/3618/3741 United States v. 35 36 United States v. Nos. 00-3617/3618/3741 Beverly, et al. Beverly, et al.

caused by the event. Haggins v. Warden, Fort Pillow State to file tax returns or not reporting income or anything of Farm, 715 F.2d 1050, 1057 (6th Cir. 1983). See also United that nature, and that’s not why this is being offered for States v. Winters, 33 F.3d 720, 722-23 (6th Cir. 1994). you. There’s no suggestion whatsoever that any of them has done anything improper in regard to their tax returns. The district court found that Mrs. Parks’s statements met This evidence is being offered only for the limited the three requirements of our excited utterance doctrine. purpose of assisting you in determining what income First, viewing the “photograph of the individual that she they may have had during the years in question, and recognized as her husband committing a bank robbery” was that’s the only purpose for which the evidence is being a startling event. Second, according to Trombitas’s used. testimony, Mrs. Parks uttered the words “oh, my God, that looks like Johnny,” as soon as she saw the photograph, and We review the district court’s decision regarding the therefore before she could have had an opportunity to admission of evidence for an abuse of discretion. United “contrive or misrepresent.” Third, Mrs. Parks identified States v. Denton, 246 F.3d 784, 788 (6th Cir. 2001). “Even Crockett in her very first statement upon seeing the if the trial court abuses its discretion, a new trial is not photograph, and then with tears in her eyes, reaffirmed that required unless [the] ‘substantial rights’ of a party are identification, evidence of the fact that she was still under the affected.” United States v. Bonds, 12 F.3d at 540, 554 (6th stress of the moment. The district court did not abuse its Cir. 1993) (citing Fed. R. Crim. P. 52(a); Rye v. Black & discretion in its admission of Trombitas’s testimony as it Decker Mfg., 889 F.2d 100, 103 (6th Cir. 1989)). That is, “an related to Mrs. Parks’s pretrial identification. abuse of discretion that does not affect substantial rights is harmless error and is to be disregarded.” Ibid. (citing Fed. R. Crim P. 52(a)). B. Admissibility of Crockett’s Income Tax Returns Crockett contends that the evidence demonstrating that he did not file tax returns in 1994 and 1995 was irrelevant for Crockett contends that evidence presented at trial by the two reasons. First, Crockett points out that he was not on trial government reflecting the fact that he did not file a tax return for any illegal activity in 1994. Second, no evidence was in 1994 or 1995 was irrelevant and prejudicial. Crockett offered by the government to demonstrate that he had spent made a timely objection to the admission of this evidence on more money than he could have earned without being these grounds. The court decided to allow the evidence to be required to file an income tax return during the relevant time presented, albeit with a limiting instruction to the jury, period. Crockett also argues that whatever potential relevance intended to cure any concerns over the potentially prejudicial this evidence had was outweighed by its prejudicial effect, nature of this information. The instruction given by the court although he does not elaborate further as to how the evidence was as follows: was prejudicial. Ladies and gentlemen, let me explain the limited nature Prior to submitting this information with regard to of the evidence that you are hearing about this Crockett’s tax returns, the government had introduced certification of an absence of tax return. None of these evidence that Crockett purchased a 1984 Cadillac automobile defendants is charged with any offense relating to failing for $2,500 on July 24, 1995, approximately six weeks after Nos. 00-3617/3618/3741 United States v. 37 38 United States v. Nos. 00-3617/3618/3741 Beverly, et al. Beverly, et al.

the Security National Bank robbery. Crockett’s failure to file disclosure is expressly authorized by federal law or 2) the an income tax return in 1995 can be considered to be relevant: Court finds there has been a particularized showing of a if Crockett’s legal income was insufficient to require a return compelling need for such disclosure and that the to be filed, it would seem unlikely that someone making such information is necessary to meet the ends of justice. a small income would be able to buy a car for $12,500 in cash. Crockett’s failure to file a tax return in 1994, however, (e)(1) If the Court finds that a Probation or Pretrial is less relevant, although it might be seen as demonstrating Services Officer shall be authorized to testify or to that Crockett did not have a large income in 1994 that could produce records, the authorization shall be limited to have explained purchases made in 1995. In any case, given only those matters directly relevant to the demonstrated the district court’s clear instructions to the jury and warning need. The Court’s Order shall identify the records which that this evidence was not intended to show that the defendant shall be produced and the subject matter of the testimony had committed tax fraud, the evidence would not have had a which is authorized. prejudicial impact on Crockett’s trial, affecting his substantial rights. The district court, therefore, did not abuse its S.D. Ohio Crim R. 32.2(d) - (e)(1). In order to make the discretion in admitting evidence demonstrating that Crockett necessary determinations pursuant to the rule, the court held had not filed tax returns in 1994 and 1995. a hearing regarding the possible testimony of Ms. Jensen. At the hearing, Turns represented to the court that he wished to question Ms. Jensen for the purpose of attacking Rogers’s credibility by showing that Rogers had made statements to C. Crockett’s Examination of Rogers’s Probation Officer Ms. Jensen that contradicted his testimony at trial. The line of questioning related primarily to information found in Crockett contends that the district court erred in imposing Rogers’s presentencing report, for which Ms. Jensen had limitations on Crockett’s examination of Rogers’s probation interviewed Rogers. However, the district court found that officer. We review a trial court’s rulings on the scope of Turns had not laid a proper foundation in Rogers’s testimony, cross-examination for an abuse of discretion. United States except with respect to Rogers’s substance abuse, since Turn’s v. Chance, 306 F.3d 356, 385 (6th Cir. 2002). attorney had not drawn Rogers’s attention to his prior allegedly inconsistent statements in the report. For this During the course of the trial, Crockett asked the district ruling, the court relied on Federal Rule of Evidence 613(b), court to approve the issuance of a subpoena for the court’s which states in relevant part: probation officer, Ms. Laura Jensen. The district court approved the issuance of that subpoena, but according to the Extrinsic evidence of a prior inconsistent statement by a court’s local rules, a judge is required to determine whether, witness is not admissible unless the witness is afforded and to what extent, a probation officer should be permitted to an opportunity to explain or deny the same and the testify. S.D. Ohio Crim. R. 32.2(b). The rule further states, opposite party is afforded an opportunity to interrogate in relevant part: the witness thereon, or the interests of justice otherwise require. (d) The Court shall authorize a Probation or Pretrial Services Officer to produce records or testify only if 1) Nos. 00-3617/3618/3741 United States v. 39 40 United States v. Nos. 00-3617/3618/3741 Beverly, et al. Beverly, et al.

The district court determined that Crockett’s counsel had Crockett indicated that he recognized the man. The district demonstrated a compelling need for such testimony and court questioned the potential juror about whether he reviewed Crockett’s cross-examination of Rogers in order to recognized anyone in the courtroom, but the man denied determine whether a proper foundation had been laid. On the recognizing anyone. Based on this response, the court denied basis of that review, the court limited Crockett’s examination the challenge for cause. Later, Crockett excused the same of the probation officer to matters relating to substance abuse juror with his last peremptory strike. and prohibited Crockett from questioning the probation officer about information relating to Rogers’s mental and Whether or not Crockett’s challenge for cause was emotional health. meritorious, the Supreme Court’s decision in United States v. Martinez-Salazar, 528 U.S. 304 (2000), forecloses Crockett’s Crockett now contends that the district court’s decision to claim. “[A] defendant’s exercise of peremptory challenges . . . limit the examination of probation officer Jensen denied him is not denied or impaired when the defendant chooses to use a fair trial. He maintains that the district court could not first a peremptory challenge to remove a juror who should have rule that there has been a particularized showing of a been excused for cause.” Id. at 317. See also United States compelling need for such disclosure, and that the information v. Quinn, 230 F.3d 862, 865 (6th Cir. 2000). Furthermore, is necessary to meet the ends of justice, and then limit the Crockett does not complain about the jurors who actually presentation of that evidence. Such contradictory rulings decided the case and thus has failed to establish that he had an would violate the local rule that governed the hearing on Ms. insufficient number of peremptory challenges to remove all Jensen’s trial testimony. However, Federal Rule of Evidence of the jurors that he wished. Crockett suggests that it was 613(b) states that extrinsic evidence of a prior inconsistent necessary for the district court to have explicitly determined statement by a witness is not admissible if the witness has not that Crockett would not have used his final peremptory had an opportunity to explain the prior inconsistency. challenge for a noncurative purpose, yet he does not cite any Crockett’s lawyer failed to mention the pre-sentence report to law in support of this proposition. Rogers in any context other than the latter’s denial of any substance abuse. The Federal Rules of Evidence preempt local court rules. Therefore, the judge correctly limited the probation officer’s testimony to the one topic that had been E. Prosecutorial Misconduct linked to Rogers’s pre-sentence report. Crockett contends that he is entitled to a new trial because of prosecutorial misconduct. In particular, Crockett points to a great many comments (seventy in total) made by the D. Challenge for Cause prosecutor during his closing argument, which Crockett considers to constitute improper vouching for government Crockett urges this court to hold that the district court witnesses, improper testimony, improper commenting on abused its discretion in failing to excuse a potential juror for Crockett’s failure to take the stand, misrepresentations of cause. Crockett stated a challenge for cause against a juror evidence, bolstering of witnesses, and improper attacking of who had once worked at the London, Ohio Correctional Crockett’s legal counsel. Although some of the prosecutor’s Institution, where Crockett had previously been incarcerated. Nos. 00-3617/3618/3741 United States v. 41 42 United States v. Nos. 00-3617/3618/3741 Beverly, et al. Beverly, et al.

statements are cause for concern, ultimately it does not appear overall strength of the evidence against the accused. United that the prosecutor’s behavior amounts to reversible error. States v. Green, 305 F.3d 422, 429-30 (6th Cir. 2002); Francis, 170 F.3d at 549-50 (citing United States v. Monus, Although Crockett lists a myriad of allegedly improper 128 F.3d 376, 394 (6th Cir. 1997)). In examining statements in his brief, his only objections at trial to the prosecutorial misconduct, it is necessary to view the conduct prosecutor’s closing argument attacked the following at issue within the context of the trial as a whole. See United statements: States v. Young, 470 U.S. 1, 12 (1985) (holding that it is critical to examine the statements at issue within the context And if you listen to the defense counsel, Agent of the entire record); Francis, 170 F.3d at 552 (noting that Trombitas has now become a co-conspirator along with the determination of whether a prosecutor’s behavior Mr. Rogers and Mr. Warren because he gave them constitutes prejudicial error must be made in the context of information and set them up, things that they could tell. the whole trial). The district court overruled Crockett’s Not only is Agent Trombitas an agent, but he’s become objections with respect to the statements that appear above. a co-conspirator here by giving them information that Crockett objects to the statement “why Mr. Crockett did what they can do. . . . Ladies and gentlemen, why Mr. he did, only he can answer,” as an impermissible comment on Crockett did what he did, only he can answer. his failure to testify. However, when viewed in context, that does not appear to have been the intent of the prosecutor’s And if either one of them [prosecution witnesses] get statement. The sentences around the statement help to put it caught in a lie, they face the possibility of losing their into perspective: plea agreement and doing the rest of their life in prison. We found another interesting concept of the law is if you Therefore, with the exception of these statements, which we don’t run, you are not guilty. Ladies and gentlemen, why review de novo, we review Crockett’s objections for plain Mr. Crockett did what he did, only he can answer. But error. See United States v. Jackson-Randolph, 282 F.3d 369, he figured probably he didn’t get arrested in ‘95 or ‘96, 384 (6th Cir. 2002); United States v. Modena, 302 F.3d 626, so he was okay, that these guys haven’t snitched on him. 634 (6th Cir. 2002). It appears that the prosecutor was responding to defense We review allegations of prosecutorial misconduct under a counsel’s characterization that “the government says this man two-step process. First we decide if the statement was robbed four banks, he stuck around Columbus for five years, improper; if the answer to that question is yes, we must he waited as his buddies . . . made deals, ignored Trombitas’s consider whether the statement was “flagrant.” United States offer and then counted on twelve white folks to set him free.” v. Francis, 170 F.3d 546, 549 (6th Cir. 1999). To determine It was completely proper for the prosecutor to counter defense if the statements here reaches that level, effectively rendering counsel’s seemingly plausible theory that Crockett would not Crockett’s trial fundamentally unfair, this court considers the have stayed in the area, had he actually been guilty of the following factors: 1) whether the remarks tended to mislead robberies. the jury or to prejudice the accused; 2) whether the remarks were isolated or extensive; 3) whether the remarks were From the trial transcript, we can infer that Crockett’s deliberately or accidentally placed before the jury; and 4) the attorney objected to the comment about Agent Trombitas Nos. 00-3617/3618/3741 United States v. 43 44 United States v. Nos. 00-3617/3618/3741 Beverly, et al. Beverly, et al.

because he felt it was an unfair characterization of his amounting to error, the error was not reversible under plain- argument to the jury. This comment is simply a rhetorical, error review since “[v]iewed in context, the prosecutor’s albeit somewhat florid, argument that the testimony of Agent statements . . . were not such as to undermine the fundamental Trombitas could only be discounted if the jury believed that fairness of the trial and contribute to a miscarriage of he was in fact conspiring with the prosecution witnesses by justice”). None of the remaining comments could be providing them with information that they otherwise only characterized as misconduct that “so infected the trial with could have known if Crockett had indeed been conspiring unfairness as to make the resulting conviction a denial of due with them. This is certainly a possible inference from the process.” Hill v. Brigano, 199 F.3d 833, 847 (6th Cir. 1999). defense argument, and there was no impropriety in the This claim is without merit. prosecutor’s rhetorical means of countering it. See Green, 305 F.3d at 430 (stating that rhetorical questions are VIII permissible). For the reasons given above, we AFFIRM the convictions The final complaint is somewhat more valid. No evidence of Crockett, Beverly, and Turns. had been introduced demonstrating that if Rogers and Warren were shown to be lying that they could spend “the rest of their life in prison.” Both had testified that they had a plea agreement, which required them to testify truthfully. The jury could certainly infer that there would be the potential for serious consequences if the witnesses lied, but the prosecutor technically went beyond what had been presented as evidence by stating they would go to prison for life. However, the remark does not meet the standards for reversal set out in Green. The remark did not mislead the jury, nor prejudice the accused. It was an isolated, extravagant remark that asserted slightly more than could be supported in the record. Finally, in the case of Crockett, who is the only defendant who objected to this particular remark, the evidence of his guilt was indeed overwhelming, including in particular the damning photograph, as well as the consistent testimony of Rogers and Warren, which the jury accepted with respect to each of the defendants. Considering all of these factors, we cannot say that this prosecutorial conduct constituted reversible error. We review the remaining sixty-eight comments for plain error. See Young, 470 U.S. at 14, 16 (1985) (holding that although the prosecutor had made improper statements