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United States Court of Appeals, Fifth Circuit.


No. 09-40989

Decided: November 24, 2010

Before CLEMENT, SOUTHWICK, and HAYNES, Circuit Judges.   LESLIE H. SOUTHWICK:  Half-brothers Paul Edward Thomas and Derrick Van Hodges were convicted of numerous counts of conspiracy, bank robbery, and weapons possession.   Both challenge the sufficiency of the evidence, the district court's decision to try them jointly, and one part of the computation of their sentences.   Thomas alone argues that several search warrants were invalid, while Hodges argues the existence of juror bias and that his sentence constitutes cruel and unusual punishment.   We AFFIRM.   STATEMENT OF FACTS Between 2005 and 2007, two men committed a series of armed bank robberies across eastern Texas.   The bank robberies were executed in the same general manner.   Two men arrived at each bank wearing clothing that covered their skin, hair, and faces;  the robbers brandished weapons and ordered customers to lie on the floor;  the shorter man jumped over the counter and collected money from the cash drawers;  the taller man stood guard in the lobby;  and the pair escaped in a recently-stolen vehicle, which they later abandoned for another vehicle.   Each robbery was completed within two minutes.   On September 27, 2007, Derrick Van Hodges was arrested in Tyler, Texas on a state warrant.   The basis for the warrant was DNA evidence linking Hodges to a glove dropped during a bank robbery in Henderson, Texas.   When arrested, Hodges had in his possession a $10 bait bill taken a week earlier during the robbery of a bank in Crockett, Texas.   Four more bait bills were found during a subsequent search of storage units rented by Paul Edward Thomas and Thomas's mother (who is also Derrick Van Hodges' mother).   A sixth bait bill was found in a child's bedroom at Thomas's residence.   Thomas and Hodges were named in an 18-count indictment charging them with conspiracy, bank robbery, and weapons offenses related to the following bank robberies:  1. December 5, 2005-Kelly Tyler Federal Credit Union, Tyler, Texas;  2. November 3, 2006-Bank of America, Henderson, Texas;  3. June 22, 2007-Austin Bank, Troup, Texas;  4. July 6, 2007-Bank of America, Lufkin, Texas;  and 5. September 21, 2007-Citizen's National Bank, Crockett, Texas.   Thomas and Hodges were jointly tried before a jury and convicted on each count.   Thomas received a sentence of 1,392 months and Hodges received a sentence of 1,435 months.   Each filed a timely notice of appeal.DISCUSSION I. Sufficiency of the Evidence Thomas and Hodges argue the government presented insufficient evidence identifying them as the bank robbers.   Thomas argues that no witness, DNA sample, weapon, or other piece of evidence put him “at the scene of any of the banks.”   He contends the government's case rests upon a pair of shoes, a .380 cartridge, a hat, and four bait bills.   Thomas claims the evidence against Hodges was much stronger and implies that Thomas was found guilty by association.   Hodges presents similar arguments, challenging the lack of eyewitness identification;  weapons and ammunition “so common as to appear anywhere in the country”;  and DNA testing that was “weak in some instances.”   He argues that his repeated DNA matches were “happenstance” because he “was in the business of selling old clothes.”   He contends the bait bill found in his wallet one week after a bank robbery was also “happenstance.”   Both defendants preserved the challenge to sufficiency by moving for judgment of acquittal at the close of the government's case-in-chief and at the end of trial.   See United States v. Percel, 553 F.3d 903, 910 (5th Cir.2008).   We review the denial of a motion for judgment of acquittal de novo.   United States v. Clayton, 506 F.3d 405, 412 (5th Cir.2007).  “[W]e view the evidence and the inferences drawn therefrom in the light most favorable to the verdict, and we determine whether a rational jury could have found the defendant guilty beyond a reasonable doubt.”   Id. (citation omitted).   Jurors are “free to choose among reasonable constructions of the evidence” in order to arrive at a verdict.   Id. (citation omitted).   We apply this standard of review to direct and circumstantial evidence.   Id. “We do not evaluate the weight of the evidence or the credibility of the witnesses.”   United States v. Solis, 299 F.3d 420, 445 (5th Cir.2002) (citation omitted).   A. Evidence as to each offense We will discuss later the evidence that demonstrated the robberies were conducted similarly.   We begin by summarizing the specific evidence introduced for each bank, then subdividing further to show the specific evidence, if any, against each defendant. 1. Kelly Federal Credit Union-Tyler, Texas After the robbery of the Kelly Federal Credit Union outside of Tyler, police found the abandoned getaway vehicle approximately two and a half miles from the credit union.   Its motor was still running.   Inside the vehicle were a pair of tennis shoes and one live round of .380 caliber ammunition.   On the ground outside the vehicle was a t-shirt.   The vehicle had a damaged steering column indicating that it had been operated without its key.   Its owner confirmed that it had recently been stolen from a fenced lot four miles from the credit union. a. Evidence as to Thomas Those who stole the getaway vehicle gained access to the lot in which it was stored by cutting a padlock on a gate.   The vehicle owner testified that he thought the padlock was sturdy and would have to have been cut using “some very large bolt cutters.”   Several pairs of bolt cutters were found in Thomas's storage units.   In addition, the .380 cartridge found in the vehicle was made by the same manufacturer as .380 cartridges later found in Thomas's storage units.   The government presented evidence that the rounds were manufactured in the same batch of 100,000 cartridges.   Nuclear DNA analysis was performed on the tennis shoes found inside the getaway vehicle.   Thomas could not be excluded as a contributor to the DNA on the tennis shoes.1  The probability that the DNA came from an African-American other than Thomas was 1 in 1,274 (left shoe) and 1 in 883 (right shoe). b. Evidence as to Hodges Nuclear DNA analysis was performed on the t-shirt found outside the getaway vehicle.   Hodges could not be excluded as a contributor.   The probability that the DNA on the t-shirt came from an African-American other than Hodges was 1 in 966.2 million. 2. Bank of America-Henderson, Texas Bank security photos showed that the robbers brandished what appeared to be an assault rifle with a distinctive banana clip and a small caliber pistol.   Upon their exit, the robbers fired two shots into the bank parking lot.   The police recovered one empty cartridge casing from the bank parking lot.   The robbers then drove less than a quarter-mile and abandoned the getaway vehicle in a grocery store parking lot.   The getaway vehicle was found with its engine running and a damaged steering column.   Police learned it had recently been stolen from a church five miles west of Henderson.   Inside the getaway vehicle was a second empty cartridge casing.   It matched the empty casing found in the bank parking lot.   An eyewitness testified that on the morning of this robbery, he saw in the grocery store lot a black man wearing a cap run in front of the getaway vehicle and into the woods, then return and get into a white four-door older-model car.   The white car was then driven west.   Another eyewitness, who had heard about a bank robbery in progress over a police scanner, stepped outside of his office to observe traffic.   He saw a white four-door sedan run a stop sign and then almost hit another vehicle.   A black man wearing a light-colored skull cap was driving and had a black passenger.   The car was headed west.   That eyewitness's office security camera captured an image of the car;  a still photo from that camera was introduced into evidence. a. Evidence as to Thomas Several months after this robbery, a gun case containing an assault rifle, a banana clip, a .25 caliber pistol, and ammunition was discovered in the woods approximately 40 miles from Henderson, Texas.   The government suggested these could be the same weapons used in the bank robbery because:  (1) another witness testified that the gun case “looked like” and “appeared to be” the gun case stolen from his storage unit in Tyler, Texas, and (2) other items stolen from this same witness were later discovered in Thomas's storage units.   A firearms expert from the FBI confirmed that the recovered assault rifle and handgun looked similar to those used in the bank robbery but could not determine conclusively that they were the actual weapons used.   The driver of the fleeing vehicle wore a light-colored skull cap.   The government introduced a picture of Thomas wearing a white skull cap, and introduced skull caps seized in Thomas's storage units. b. Evidence as to Hodges Police discovered a cotton glove in the woods by the grocery store parking lot.   Nuclear DNA analysis could not exclude Hodges as a contributor to the DNA on the glove.   The probability that the DNA came from an African-American other than Hodges was 1 in 228.7 billion.   The government introduced a photograph of Hodges' wife's vehicle parked in front of Hodges' home.   It was allegedly “very similar” to the vehicle fleeing the bank robbery as captured by the security camera.   The jury was invited to compare the photos for a potential connection to Hodges. 3. Austin Bank-Troup, Texas The robbers fled this bank robbery in a stolen Chevrolet Blazer, which was found running and displayed damage to the steering column.   Police found a black hat inside the Blazer. a. Evidence as to Thomas and/or Hodges The day after the bank robbery, a state trooper stopped Hodges for speeding.   Hodges was driving a rented Dodge;  his only passenger was Thomas.   The trooper noticed both men had large rolls of cash on them, and both gave vague explanations about heading to Houston to see family.   After the Dodge was returned to the rental company, law enforcement removed the tires and compared the treads to prints left in the mud next to the abandoned Blazer.   The treads matched the prints.   These were not rare tires, however, and there was no proof that those specific tires left the prints.   A hair found inside the hat was analyzed using mitochondrial DNA testing.   Thomas could not be excluded as the source.   The probability that the hair came from an African-American other than Thomas was 1 in 385.   An FBI forensic examiner testified that 1 in 385 was the most significant match available for the African-American population, given the FBI's database.   Thomas and Hodges, though, have the same mother and therefore have identical mitochondrial DNA. This evidence thus cannot link a particular defendant to this getaway vehicle.   The jury was fully informed of Thomas and Hodges' relationship and this feature of mitochondrial DNA. Thomas argued that he could not have provided the hair in question because he is bald;  therefore, he alleged, this evidence properly implicated only Hodges.   Separately, in its discussion of this robbery during closing arguments, the government reminded the jury that Hodges is missing a finger on his left hand, then exhorted the jury to “[l]ook at these photographs and compare for yourself.” 4. Bank of America-Lufkin, Texas In this robbery, there was evidence that at least three vehicles were broken into and had their steering columns damaged.   At a used car lot four to five miles from the bank, someone cut the chain to the lot, broke into a car, but did not take the vehicle.   At the same lot, a pickup truck was broken into and stolen.   The pickup truck was used to travel to and from the bank.   It was then abandoned, and a van was used by the fleeing robbers.   The van had been stolen from a church parking lot approximately three miles from the bank. a. Evidence as to Thomas No DNA or physical evidence linked Thomas to this bank robbery.   During closing arguments, the government highlighted that this robbery required the car thief or thieves to cut the chain into the car lot, implying a need for bolt cutters.   Several pairs of bolt cutters were found in Thomas's storage units. b. Evidence as to Hodges Police found a cloth head-covering, commonly called a do-rag, inside the abandoned van.   Hodges could not be excluded as a contributor to the DNA on the do-rag.   The probability that the DNA came from an African-American other than Hodges was 1 in 6.579 sextillion (21 zeros after the integer). 5. Citizens National Bank-Crockett, Texas In preparation for this robbery, the bank robbers stole their getaway vehicle from a car lot approximately 30 to 35 miles south of Crockett.   As with the previous robbery, they accessed the car lot by cutting the chain link and then broke into multiple vehicles in an attempt to find an operable vehicle.   The getaway vehicle was found approximately a half-mile from the bank, with damage to the steering column. a. Evidence as to Thomas The bank had mixed a number of $10 bait bills into the money taken during this robbery.   Four of these bait bills were discovered during the search of Thomas's storage units.   A fifth bait bill was found in a child's room during a search of Thomas's house. b. Evidence as to Hodges Hodges had one of the bait bills in his wallet when he was arrested approximately one week after this robbery.   B. Analysis of the evidence The strength of the evidence against each defendant varies from offense to offense.   The DNA evidence and bait bills constitute sufficient evidence against Thomas to sustain convictions relating to the first and fifth bank robberies, and sufficient evidence against Hodges to sustain convictions relating to the first, second, fourth, and fifth bank robberies.   We also find sufficient evidence to sustain Thomas and Hodges' convictions for conspiracy.   Thomas's complaints about the nuclear DNA evidence are unpersuasive.   The fact that the probabilities implicating Thomas are less overwhelming than those implicating Hodges-e.g., one out of several hundred or one thousand, rather than one in one sextillion-does not mean they are statistically insignificant or somehow unreliable.   Thomas has not presented any evidence that the DNA results are not statistically significant.   We now consider whether the government presented sufficient evidence to sustain Thomas's convictions relating to the second, third, and fourth robberies, and Hodges' convictions relating to the third robbery.   Without overwhelming direct evidence on these counts, the jury must have considered the circumstantial evidence against Thomas and Hodges, then drawn an inference that they were the bank robbers in each robbery.  “Inferences and presumptions are a staple of our adversary system of factfinding.   It is often necessary for the trier of fact to determine the existence of an element of the crime-that is, an ‘ultimate’ or ‘elemental’ fact-from the existence of one or more ‘evidentiary’ or ‘basic’ facts.”   County Court of Ulster Cnty., N.Y., v. Allen, 442 U.S. 140, 156 (1979).   In this case, the element requiring inferences to be drawn is identification.   On appeal, “[a]ll reasonable inferences from the evidence must be construed in favor of the jury verdict.”   United States v. Martinez, 975 F.2d 159, 161 (5th Cir.1992) (citation omitted).  “Circumstances altogether inconclusive, if separately considered, may, by their number and joint operation, especially when corroborated by moral coincidences, be sufficient to constitute conclusive proof.”   Id. (internal quotation marks and citation omitted).   Inferences can also be drawn from pattern evidence.   Where “the government presents circumstantial evidence of an ongoing pattern of similar transactions, the jury may reasonably infer from the pattern itself that evidence otherwise susceptible of innocent interpretation is plausibly explained only as part of the pattern.”   United States v. Kington, 875 F.2d 1091, 1100 (5th Cir.1989).   In light of “the pattern of dealing suggested by the government's evidence,” a jury may reasonably conclude that “the only plausible explanation of the evidence was the government's theory.”   Id. at 1106.   In the present case, the government presented a substantial amount of evidence that the bank robberies were executed in the same manner:  a getaway vehicle was stolen in a particular way;  there were always two robbers;  clothing covered the robbers' exposed skin;  weapons were brandished;  the shorter man jumped the teller counter;  the robbers were in and out within two minutes;  and the still-running getaway vehicle was soon abandoned for another vehicle.   For each robbery, the government introduced into evidence security photos and videos, which in banks are sometimes a collection of still photos.   The photo and video evidence allowed the jury to consider whether the bank robbers looked and acted similarly in each robbery.   This evidence also enabled the jury to determine whether the execution of each bank robbery was so identical as to permit an inference that the bank robbers in each were the same.   This evidence may have permitted the jury to identify a bank robber who was missing a finger.   The government introduced other evidence implicating Thomas.   Included were items seized from Thomas's storage units, such as bank bags, clothing similar to that worn by the bank robbers, a police scanner, a newspaper clipping about the bank robberies, large bolt cutters, and other tools useful for stealing getaway vehicles.   The government also called the property manager of Thomas's storage units to testify.   She said Thomas's monthly rent payments were unusual:  he always paid with $100 bills.   After the close of evidence, the jury was instructed on drawing inferences from the evidence.   The instruction is not challenged.

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