Appeal from the United States District Court for the District of Kansas D.C. No. 2:10-CR-20078-JWL-1
Mark A. Thomason, Law Office Of Mark Thomason, LLC, Blue Springs, Missouri, for Defendant-Appellant.
Leon Patton, Assistant United States Attorney, Kansas City, Kansas (Barry R. Grissom, United States Attorney, with him on the brief) for Plaintiff-Appellee.
Before TYMKOVICH, EBEL, and HOLMES, Circuit Judges.
HOLMES, Circuit Judge.
Anthony Brooks was convicted, after a jury trial, of armed bank robbery in violation of 18 U.S.C. § 2113(a), (d). He now appeals his conviction, arguing that: (1) the evidence at trial was insufficient, as a matter of law, to support his conviction for armed bank robbery; (2) the district court erred by admitting DNA evidence linking him to the crime scene; (3) the district court's refusal to strike the testimony of the government's expert witness constituted an abuse of discretion; (4) the district court abused its discretion by allowing the government to introduce evidence that Mr. Brooks was in possession of large amounts of cash several months following the robbery; and (5) the district court abused its discretion by denying Mr. Brooks's motion for a new trial based on alleged juror misconduct. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
The Security Bank of Kansas City was robbed on December 29, 2006. Gwendolyn Gilbert and Mamie Sherrod were the tellers responsible for opening the bank on the day of the robbery. In accordance with the bank's standard procedure, Ms. Gilbert entered the bank first, locked the door behind her, turned on the lights, and then returned to the front door to let Ms. Sherrod into the bank. As Ms. Sherrod exited her vehicle and approached the bank door, a man with a gun rushed to her side. The man was dressed in all black, wore a mask and gloves, and was pointing a gun at Ms. Sherrod. Ms. Sherrod could not see the man's skin, but "figured he was a black man" because of his voice. R., Vol. 2, at117 (Trial Tr., dated Mar. 3, 2011).
Ms. Gilbert testified that she let the robber and Ms. Sherrod into the bank because she "didn't want to leave [Ms. Sherrod] out there by herself with [the gunman]." Id. at 471. According to the surveillance video shown at trial, the robber entered the bank at 6:29 a.m. At gunpoint, the robber directed Ms. Sherrod and Ms. Gilbert to enter the bank's vault room where the safes were located. The robber then instructed Ms. Sherrod to open the safe that contained the tellers' individual cash drawers. To open this particular safe it was necessary for one employee to use a key while another employee entered a combination. The same employee cannot simultaneously turn the key and enter the combination. As Ms. Sherrod began the process of opening the safe by using her key, Ms. Gilbert attempted to enter her combination. While Ms. Gilbert was struggling with the combination, the robber had Ms. Sherrod sit on the floor and bound her wrists with plastic ties.
If Ms. Gilbert had been able to open the safe, the robber would have only had access to a relatively small amount of money kept in Ms. Sherrod's teller drawer. However, Ms. Gilbert continued to have difficulty entering her combination, and the robber hit her with his gun (although Ms. Sherrod later testified that "[the robber] didn't hit [Ms. Gilbert] that hard"). Id. at 125. Ms. Gilbert then moved to the vault teller's safe, which she could open by herself.Ms. Gilbert was able to successfully open the vault teller's safe. After Ms. Gilbert had opened the safe, the robber instructed her to sit on the floor and bound her ankles and wrists with plastic ties. The robber also bound Ms. Sherrod's ankles (he had previously bound only her wrists). The robber left the two women seated on the floor and began removing the cash from the vault teller's safe. At this time, the robber asked Ms. Sherrod for the keys to her vehicle. Ms. Sherrod responded that she had left her keys locked inside her car because she could unlock her vehicle using a combination code. The robber did not ask Ms. Gilbert for her keys. The robber then exited the room, telling the women not to come out of the room, as he shut the door. The robber took $246, 186 in United States currency from the safe.
After ten or fifteen minutes had passed, Ms. Gilbert was able to get Ms. Sherrod's cell phone out of her pocket, and Ms. Sherrod called the police. Ms. Sherrod could not reach her cell phone without Ms. Gilbert's help because Ms. Sherrod's hands were tied in front of her.
The police arrived at the bank around 7:00 a.m. One of the responding officers, Officer Ken Winzer, freed the two women by cutting the plastic ties the robber had used to bind their wrists and ankles. Officer Winzer testified that he had noted in his report that "Ms. Gilbert . . . did not seem to be very upset; whereas, Ms. Sherrod was very emotional and upset." Id. at 166–67. He also had noted in his report that "the ties on Ms. Gilbert were not as tight as they were on Ms. Sherrod, " and explained that "[this] seemed out of the ordinary." Id. at 167.
Officer Winzer left the ties on the floor where they had fallen after he cut them. Although he could not say for sure, Officer Winzer did not believe he had touched the ties with anything other than his knife blade. Officer Winzer testified that he left the ties on the floor "[t]o preserve any evidence that might [have] be[en] on them." Id. at 165. He did not see "who actually picked them up and collected them." Id. at 165–66. Although the ties were not immediately collected, Officer Winzer testified that he did not see anyone touch the ties after they had been cut.
The plastic zip ties were later collected by Crime Scene Investigators
("CSI") Greg Burris and John Nash. Officer Burris testified that there was no indication the zip ties "had been moved or touched between the time [he] first saw them and the time that [he] actually picked them up." Id. at 203. In addition to collecting the zip ties, Officers Nash and Burris collected a piece of blue latex, which "appeared to be a broken-off piece of a latex glove." Id. at 165.
The zip ties and glove fragment were submitted to the Johnson County Crime Lab in May 2006. Bethany Stone, a forensic scientist and the government's DNA expert, began examining the zip ties and glove fragment in June 2008. To process the ties, Ms. Stone "used a sterile swab and water to collect possible skin cell transferred DNA from the closure ends of the zip ties." Id. at 275. She "did not swab the entire zip tie" because she wanted to focus on "obtain[ing] possible suspect DNA as opposed to . . . possibly getting an abundance of victim DNA." Id. at 275–76. She did not see "any evidence on any of the zip ties of any sort of fluid, " such as blood, saliva, or semen. Id. at 276. Ms. Stone labeled the four zip ties as Lab Items 1.1, 2.1, 3.1, and 4.1. She labeled the glove fragment as Lab Item 5.1.
Ms. Stone found mixtures of DNA (i.e., DNA from at least two individuals) on all of the items except zip tie 2.1, where she found only a small amount of male DNA. Ms. Stone was able to determine that there was male DNA on all four zip ties and the glove. At the time of this original analysis, Ms. Stone only had DNA from Ms. Sherrod and Ms. Gilbert to compare to the DNA profiles obtained from the zip ties. She was able to exclude Ms. Sherrod as a source for all of the DNA found on the zip ties. Ms. Stone was able to exclude Ms. Gilbert as a source for all of the DNA found on the zip ties labeled 2.1, 3.1, and 4.1 and the glove fragment, labeled 5.1. She was not able to form a conclusion as to whether some of the DNA on the zip tie labeled 1.1 belonged to Ms. Gilbert.
In January 2008, more than a year after the robbery, Jerome Gilbert, Jr., the just-divorced ex-husband of Ms. Gilbert, told the FBI he suspected that his former co-worker, Mr. Brooks, had committed the robbery. Mr. Brooks is an African-American. Although Mr. and Ms. Gilbert did not divorce until January 2008, Ms. Gilbert had been in a romantic relationship with Mr. Brooks "[s]ince about 2005." Id. at 466–67. In December 2006 (the month of the bank robbery), Ms. Gilbert lived in the family home but slept in an apartment above the garage. At the time of trial, she testified that Mr. Brooks visited her in the apartment the night before the robbery and the two had sexual intercourse. Afterwards she "let him out and went back to bed in the apartment." Id. at 469. She did not take a bath or shower that night or the next morning before going to work at the bank.
According to phone records admitted into evidence at trial, there were 148 calls between Mr. Brooks's phone and Ms. Gilbert's phone during the four-week period immediately before the robbery. However, there were no calls between the two numbers between December 24, 2006 (five days prior to the robbery), and March 2, 2007. Mr. Brooks's phone records also showed that at 6:19 a.m., on the morning of the robbery, he made a call to his wife's cell phone that ...