12 F.3d 540 (6th Cir. 1993), 91-3608, United States v. Bonds

Docket Nº:Wayne Yee (91-3608), Defendants-Appellants.
Citation:12 F.3d 540
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. John Ray BONDS (91-3610); Mark Verdi (91-3609); and Steven
Case Date:December 15, 1993
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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12 F.3d 540 (6th Cir. 1993)

UNITED STATES of America, Plaintiff-Appellee,

v.

John Ray BONDS (91-3610); Mark Verdi (91-3609); and Steven

Wayne Yee (91-3608), Defendants-Appellants.

Nos. 91-3608, 91-3609, 91-3610.

United States Court of Appeals, Sixth Circuit

December 15, 1993

Argued Dec. 11, 1992.

Rehearing and Suggestion for Rehearing

En Banc Denied Feb. 18, 1994.

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James R. Wooley, Asst. U.S. Atty. (argued & briefed), Craig S. Morford, Cleveland, OH, for U.S.

Ronald L. Kuby and William M. Kunstler (argued), Peter J. Neufeld, Barry C. Scheck (argued & briefed), Benjamin Cardozo School of Law, New York City, for Steven Wayne Yee.

Peter J. Neufeld, Barry C. Scheck (argued & briefed), Benjamin Cardozo School of Law, New York City, for Mark S. Verdi.

Peter J. Neufeld, New York City, Terry H. Gilbert (briefed & argued), Friedman & Gilbert, Cleveland, OH, Barry C. Scheck (argued & briefed), Benjamin Cardozo School of Law, New York City, for John Ray Bonds.

Before: KENNEDY and BATCHELDER, Circuit Judges; and ENGEL, Senior Circuit Judge.

BATCHELDER, Circuit Judge.

On February 27, 1988, David Hartlaub was gunned down in his van as he stopped at a bank near the Sandusky Mall in Perkins Township, Ohio, where he planned to make a night deposit of cash from the music store he helped manage. The killers apparently had no interest in robbery; police found the deposit bag containing some four thousand dollars on the seat of the van. Three individuals--Wayne Yee, Mark Verdi and John Ray Bonds--were indicted in connection with the crime, tried, and convicted of conspiracy (18 U.S.C. Sec. 371) and federal firearms offenses (26 U.S.C. Sec. 5861(d) and 18 U.S.C. Sec. 922(g)(1)). At trial, the Government's theory for the shooting was that the gunmen, members of the Hell's Angels motorcycle gang, had mistaken Mr. Hartlaub's yellow van for an identical van driven by a local member of a rival motorcycle gang, the Outlaws,

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whom the gunmen had allegedly planned to "hit" in retaliation for the shooting of a Hell's Angels member by an Outlaw the previous year in Joliet, Illinois. The defendants also claim that this is a case of mistaken identity--theirs--and challenge their convictions, claiming the Government's evidence to be either flawed, circumstantial, or both. Among the issues we must confront in this appeal is an issue of first impression for this court: whether the district court erred in admitting expert testimony concerning deoxyribonucleic acid (DNA) evidence in the trial of these defendants. For the reasons set forth below, we affirm the defendants' convictions.

I. Facts

No bystanders saw the shooting. However, Douglas Waratuke, another music store employee, had followed Mr. Hartlaub to the bank and saw Mr. Hartlaub lying on the ground next to the van when Waratuke arrived at the bank. When Waratuke went to get out of his car, however, a man ran up and put a gun to Waratuke's head through the half-open window and ordered him to stay in the car. Based on Mr. Waratuke's description of the gunman as 25-27 years old, 5' 11", 165 pounds, with a "lanky build" and a "Hispanic appearance," the police made a sketch. Four other bystanders saw the same man and gave similar descriptions. One, Elizabeth Graf, also saw the getaway car, which she described to the police as a cream or tan color Buick, four door, dirty but in good condition.

After the Hispanic-looking man ran away, apparently heading for a nearby hotel, Mr. Waratuke saw an arm reach out of the van and close the door; the occupant then drove off with the van. Police later found the van abandoned behind the hotel with its engine still running and lights on. The gun used in the shooting, a MAC-11 9-mm semi-automatic pistol fitted with a homemade silencer and a multi-round clip with a plastic garbage bag taped on to catch the spent cartridges, lay on the floor between the seats. The gun's serial number had been obliterated; however, the FBI was later able to "raise" the serial number. The gun turned out to have been owned previously by Donald Myers, a former roommate of defendant Yee, who had owned two such guns and testified that they had been stolen from his car when it was parked outside their apartment.

Both the gun and the van's carpet were spattered with blood. Serology tests showed that the blood was not Mr. Hartlaub's, but rare enzymes identified in the spattered blood, which only appear in about 1% of caucasian males, matched those found in Mr. Bonds's blood. Most of the blood in the van had dripped between the front seats; shortly after the murder Mr. Bonds wore his right arm in a sling, and it was later established that he had a serious ricochet wound which evidently bled between the seats as he drove the van that night.

A few minutes after the shooting, two officers stopped a car for making an illegal turn about two miles from the bank. The car, which was headed away from the bank, had Defendant Mark Verdi at the wheel, Mr. Yee in the front passenger seat, and a third man in the back seat. As soon as the car was stopped, Yee got out and told the officers that he owned the car. Officer Jarrett asked Yee to get back in the car and approached the driver. When Verdi was unable to produce his driver's license, Jarrett asked him to step out of the vehicle and accompany him to the police cruiser while they checked the computer to see if Verdi was a licensed Ohio driver. Before placing Verdi in the back of the cruiser, Officer Hemmer patted down Verdi. Hemmer felt a hard round object with a hole in the middle in Verdi's pocket; Verdi said it was a roll of tape. Hemmer did not remove the object to confirm the truth of Verdi's statement because the object did in fact feel like a roll of electrical tape. During conversation, Verdi told the officers that they were "just passing through." A computer check revealed that Verdi was a licensed driver and that the car was registered to Steven Yee. Jarrett confirmed that the passenger that had claimed the car was his was in fact Steven Yee by asking to see Yee's license. The officers did not issue a citation to Verdi, nor did they speak to the man in the back seat. Although Jarrett remembers a squad car with siren and lights on drive

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past in the opposite direction (toward the bank), the officers did not know at the time of the stop that the murder had occurred.

Meanwhile, federal agents monitoring gang activity had received information that the Cleveland Hell's Angels were planning to retaliate against the Sandusky Outlaws for the Joliet shooting, at which Bonds had been present. The agents knew that Yee was a member of the gang and that Bonds and Verdi were prospective gang members, and when they learned of the murder, and of the subsequent stop of Yee and Verdi in Sandusky near the crime scene, the agents believed they were on the right track. They suspected that Bonds had shot Hartlaub in the van and driven off, that Yee was the "Hispanic looking" man who had confronted Waratuke and the others after the shooting, and that Verdi had picked the two up in Yee's car in back of the hotel after Bonds arrived in the van. Bonds, the agents believed, was the man later seen in the back of Yee's car during the police stop.

On March 3, federal, state and local officers met with a federal attorney to discuss the investigation. Present were, among others, FBI Special Agent George Steinbach and federal attorney Michael T. Rae ("AUSA Rae"). The agents discussed obtaining a search warrant for the Yee car; Mr. Rae agreed to help write up an affidavit for that purpose.

After obtaining grand jury subpoenas for the purpose, the agents took photos of Mr. Yee and of his car on March 7. When showed the photos of the car, witness Elizabeth Graf said it was not the same car, that the car she saw at the crime scene was "possibly lighter in color and possibly smaller." Also, by this time, the agents had found that the eyewitness descriptions of the gunman at the bank differed somewhat from Yee's actual appearance. They had found Yee to be of Chinese ancestry, age thirty-two, height 6' 3", 225 pounds, with black hair and brown eyes; Yee usually wore round wire-rim glasses.

On March 9, Eastlake, Ohio detective Tom Doyle searched Mark Verdi's home pursuant to a state warrant, looking for bank documents in connection with an unrelated crime. Doyle had known Verdi for over fifteen years and knew him to be connected with the Hell's Angels; he also had learned a few days earlier that Perkins Township police suspected Verdi was involved in the Hartlaub murder. Before he executed the warrant, Doyle, as was his practice when investigating possible gang-related crimes, had contacted a federal Bureau of Alcohol, Tobacco, and Firearms ("BATF") agent, Steve Wells, who was involved in tracking the Hell's Angels. Agent Wells and FBI Agent Stuart Shoaff told AUSA Rae that they wanted to tag along on Doyle's intended search; Rae opined (wrongly, as we shall see) that they would find nothing of value to the investigation. Nevertheless, Wells and Shoaff decided to accompany Doyle on the search of Verdi's home.

Besides finding evidence of the bank fraud, the state officers searching the house came across several items they believed to be evidence of the Hartlaub murder, including a map opened to Sandusky, black plastic bags and rolls of black electrical tape of the types used to make the plastic "shell catcher" bag and secure it to the murder weapon, and several firearms. The officers also found a briefcase or toolbox...

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