Appeal from the United States District Court for the Northern District of Oklahoma. (D.C. No. 4:11-CR-00179-GKF-2).
Howard A. Pincus, Assistant Federal Public Defender (Warren R. Williamson, Federal Public Defender, Interim, with him on the briefs), Office of the Federal Public Defender, Denver, Colorado, for the Defendant-Appellant.
Joel-lyn Alicia McCormick, Assistant United States Attorney (Danny C. Williams, Sr., United States Attorney and Leena Alam, Assistant United States Attorney, with her on the briefs), Office of the United States Attorney, Tulsa, Oklahoma, for the Plaintiff-Appellee.
Before LUCERO, MURPHY, and MATHESON, Circuit Judges.
LUCERO, Circuit Judge.
Stanley Hill appeals following his conviction on several charges related to the robbery of a bank. During trial, Charles Jones, a special agent with the Federal Bureau of Investigation (" FBI" ), testified as an expert. Agent Jones stated that he was trained in " special tactics and ways to identify  deception in statements and truths in statements" and that in his opinion, many of Stanley's answers were not worthy of credence and " [did] not make sense." Jones claimed that Stanley displayed evasive behaviors " common among the criminal element to keep law enforcement at bay" during an interrogation. When asked about Stanley's statement that he would rather die than face charges, Jones testified, " Never in my career have I seen that with an innocent person." And when the prosecutor asked about Stanley's repeated invocations of God in support of his truthfulness, Jones stated, " My training has shown me, and more[ ]so my experience in all these interviews, when people start bringing faith into validating  their statements, that they're deceptive. Those are deceptive statements."
Stanley did not contemporaneously object to the admission of this evidence. Nevertheless, we conclude the court plainly erred in admitting this testimony and, in
light of the relative weakness of the government's overall case, that it affected Stanley's substantial rights. We further conclude that this is one of the exceptional cases in which we exercise our discretion to notice the plain error because failing to do so would seriously undermine the fairness, integrity, or public reputation of judicial proceedings. Exercising jurisdiction under 28 U.S.C. § 1291, we reverse.
Stanley Hill and his brother, Vernon Hill, were charged with bank robbery with a dangerous weapon and use of a firearm during and in relation to a crime of violence following the November 5, 2011, robbery of an Arvest Bank in Tulsa, Oklahoma. Stanley was also charged with being a felon in possession of a firearm. Following a jury trial, Vernon was convicted of both charges against him. The jury deadlocked on the charges against Stanley, and the district court declared a mistrial.
The government proceeded at the first trial upon the theory that Vernon and Stanley were the two men who physically entered and robbed the bank. After discovering additional evidence, however, the government came to believe that Vernon and another Hill brother, Dejuan, were the two individuals who entered the bank while Stanley acted as a getaway driver. Stanley and Dejuan were charged by superseding indictment with a Hobbs Act violation, bank robbery with a dangerous weapon, and use of a firearm during and in relation to a crime of violence. Stanley was also charged a second time with being a felon in possession of a firearm.
At the second trial, the government adduced testimony from several individuals who witnessed the robbery. A customer of the bank testified that she observed two men wearing hoodies and gloves standing near the bank just before the robbery, one of whom was talking on a cell phone. Bank employees testified that two masked men entered the bank shortly after it opened, ordered the occupants to the floor, and demanded money. One of the robbers brandished a firearm, identified by one of the employees as a 9mm. The thieves put money into a tan-colored pillow case and fled west on foot. A witness who lived near the bank testified that he saw two men running down the street carrying a white bag shortly after the robbery.
The stolen cash included " bait bills" containing a GPS tracking device. This device automatically activated upon being removed from a teller's drawer and sent a notification to a Tulsa police sergeant at 8:30 or 8:31 a.m. The speed of the tracking device indicated it was being transported in a vehicle. Within a few minutes, it came to a stop in the vicinity of 1100 East Pine in Tulsa. A Tulsa police officer testified that within five to ten minutes of being notified by dispatch of the bank robbery, he arrived in that area and focused on a residence at 1107 East Pine (the " East Pine residence" ). Shortly after he arrived on the scene, the officer reported that a black Nissan Altima left the driveway of that home. The driver was later identified as Dejuan. No other person entered or exited the home during the officer's surveillance. The tracking device indicated that it was located within the East Pine residence.
After approximately two hours, officers observed Stanley exiting the home and took him into custody. A short time later, Vernon came outside and was also detained. The brothers were transported separately to a Tulsa police station. Stanley identified himself as Daniel Hill and provided a birth date and social security number. After pulling up a picture of Daniel Hill and noticing the absence of a
tattoo on Stanley's arm, a detective confronted Stanley about his identity. Stanley began crying and asked to speak with the detective in a room out of Vernon's earshot. After being moved to a separate interview room, Stanley identified himself truthfully.
Tulsa Police Corporal Christopher Stout and Agent Jones conducted a videotaped interview with Stanley, which was played for the jury. In his interview, Stanley stated that he woke up at his girlfriend Whitney Landrum's home although he claimed not to know her address. He said that after waking up he went to the home at 1107 East Pine, which Stanley identified as belonging to his father, Stanley Battle. He claimed that no one was present when he arrived at roughly 6:00 a.m., and that he watched television and fell asleep in the living room shortly thereafter. Stanley said that he planned to watch his stepsister, who was going to be dropped off at the home by her mother sometime that morning. He was unsure of the step-sister's exact age, stating that she was about 11, and said he did not know the name of her mother. Stanley did not know the exact time she was going to be dropped off.
Stanley claimed he was awoken by the house phone several hours later and was informed there were police outside. He went outside and was taken into custody. Stanley claimed that an officer told him that another man had left the house, and said that he did not hear anyone come or go while he was sleeping. He stated in the interview that he was not sleeping very deeply, and would have known if anyone else was in the home.
After hearing Stanley's story, the interviewers challenged his version of the facts. They explained that a bank has been robbed and that material from the bank was found in the East Pine residence. They suggested that if he was the only one in the house, he was likely the bank robber. Stanley then acknowledged that his brother exited the home after he did, but said he did not know anyone else was in the home. He denied involvement in the bank robbery. When officers expressed disbelief, he repeatedly stated that he would swear on the Bible, and swore to God that he was telling the truth. He also stated that he did not want to live and that he would rather die than face charges.
Meanwhile, Tulsa Police obtained a search warrant for the East Pine residence. Officers discovered a tan-colored pillowcase full of cash in the bottom drawer of the oven, including the tracking device taken from the Arvest Bank. An officer testified that " the drawer was very full of pots and pans" and that he could hear officers " struggling to get that drawer open with pots and pans in the way" from the living room. The living room was located fifteen to eighteen feet from the kitchen. Officers also found a Glock .45 caliber pistol, a pair of black pants, a black ski mask, and two pairs of black gloves in a bedroom of the house. They discovered mail addressed to Vernon and Battle.
Corporal Stout testified about the difficulties he encountered attempting to contact Landrum. He stated that Landrum repeatedly hung up on him, and that Landrum resisted contact when served with a subpoena. He also learned that Landrum drove a black 2004 Nissan Maxima. Landrum was subpoenaed, asserted her Fifth Amendment rights, and was granted immunity. She testified that Stanley is her boyfriend and the father of two of her children. Landrum further testified that Stanley left her home early in the morning on the day of the robbery and that she went to the East Pine residence sometime around 8:00 or 9:00 a.m. to pick him up. By the time she arrived in her Nissan, police were already on the scene.
The prosecution also introduced two phone calls made by Stanley from jail. In a discussion between Stanley and Landrum about bond money, Landrum relays that Vernon referred to Stanley as " the weak link of the group" and that he suggested Stanley be bailed out first if possible. In another call between Stanley and his father, Battle warns Stanley not to say " nothing to do with what they holding y'all for . . . don't say where you was." Battle notes that the police might suggest other people had provided information, and says, " you know we're family, we stick together, so you don't have to worry about the police talking about who told what."
A significant portion of the government's case involved cell phone evidence. Neither Vernon nor Stanley was carrying a cell phone when they were taken to the police station. Landrum testified that her cell phone number ended in " 3860" and that she was not sure where her phone was at the time of the robbery. She also stated that she spoke with Vernon and Dejuan by phone regularly. A phone company employee testified that Vernon subscribed to a cell phone number ending in " 9204," and that Landrum subscribed to two different numbers: the number ending in 3860, and another phone number ending in " 1576." Landrum told investigators that she did not know which phone Stanley was using on the day of the robbery, but she was certain it was not Vernon's phone. Stanley provided the 1576 number as a contact number to officers on the day of the robbery. Dejuan also listed the 1576 number as his contact information when visiting his brothers in jail.
Another special agent with the FBI testified about cell phone tower data. He explained that cell phone towers typically include three separate receivers, each of which provides cellular service to a wedge-shaped " sector" emanating from the tower. Each sector encompasses 120 degrees, meaning that a tower provides 360 degrees of coverage. Phone companies maintain data on the tower and sector to which a cell phone connects when making or receiving a call. The agent testified that in densely populated areas, cell phone towers are designed to have some overlap such that a phone might connect to two different towers from the same location, but that the data provides a " general area" from which a call was placed or received. The agent prepared several exhibits showing the locations of various towers in the Tulsa region, superimposed with highlighted areas depicting an approximate range for each relevant tower sector. He stated that the angles of the sectors depicted in the maps were " definitive" but that the distance from the tower was a " general depiction" based on his training and experience. The maps show that Arvest Bank is located to the southeast of the East Pine residence, and that Landrum's home is between the two, not far from the bank.
The cell tower data showed that Vernon's phone, ending in 9204, contacted the tower nearest Arvest Bank on the evening prior to the robbery. It was located in the sector that includes Landrum's home at 6:47 a.m. on November 5, the day of the robbery. The phone then received a call while located near the East Pine residence at 7:09 a.m. At 8:19 and 8:30, the phone contacted two towers near Arvest Bank. Seconds before 8:31, and just before the robbery, Vernon's phone made a call that contacted the tower nearest Arvest Bank. At 8:53 and 9:07, Vernon's phone was
again located in the vicinity of the East Pine residence.
The phone number ending in 3860 also provided detailed information. That phone received a call from Vernon's phone at 6:47 a.m. and it too was located near Landrum's home. At 7:15, it received a call from the 1576 phone and was still located in the vicinity of Landrum's home. At 8:19, Vernon's phone called the 3860 number, and both phones contacted the same tower near the Arvest Bank. The two calls made from Vernon's phone at 8:30 were both to the 3860 number, and the two phones contacted the same towers: the first call connected the phones through a tower near Arvest Bank, and the second call went through the tower nearest the bank. At 9:04, the 3860 phone connected to a tower located southwest of the East Pine residence. The 3860 phone exchanged several calls with Vernon's phone from several different towers, apparently while travelling in a southerly direction.
The data on the phone ending in 1576 was more limited. It contacted a tower near Arvest Bank the night before the robbery. Between 7:09 and 7:14 a.m. the morning of the robbery, that phone exchanged several calls with Vernon's phone while both were located near the East Pine residence. At 7:15 and 7:16, the 1576 number was near the East Pine residence when it exchanged calls with the 3860 number, which as noted above, was in the vicinity of the Landrum home. At 8:07, the 1576 number called an unknown phone number from the vicinity of the Landrum home, and was turned off shortly thereafter.
Special Agent Jones provided testimony as the case agent on the government's theory of the case. Jones testified that he " believe[d] Stanley Hill was the getaway driver waiting for Dejuan and Vernon to exit the bank and get in the vehicle as he drove them to 1107 E. Pine after the bank robbery." With respect to the cell phone data, Jones opined that Dejuan was carrying the 1576 phone and Vernon the 9204 phone on the night before the robbery, and were " casing" the bank when those phones contacted the tower nearest the bank on the evening of November 4. On the morning of the robbery, Jones believed that Stanley had the 3860 phone, and was using it to communicate with Vernon and Dejuan through Vernon's phone. Jones stated that he believed Dejuan was carrying the 1576 phone on November 5, but had it switched off during the time of the robbery. ...