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Summary: 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, Plaintif
Summary: 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..
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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
