627 F.3d 146 (5th Cir. 2010), 09-40989, United States v. Thomas

Docket Nº:09-40989.
Citation:627 F.3d 146
Opinion Judge:LESLIE H. SOUTHWICK, Circuit Judge:
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Paul Edward THOMAS; Derrick Van Hodges, Defendants-Appellants.
Attorney:Laurel Franklin Coan, Jr., Asst. U.S. Atty. (argued), Robert James Middleton, Tyler, TX, for U.S. Deborah Johnson Race (argued), (Court-Appointed), Ireland, Carroll & Kelley, P.C., Tyler, TX, for Thomas. James Wesley Volberding (argued), (Court-Appointed), Tyler, TX, for Van Hodges.
Judge Panel:Before CLEMENT, SOUTHWICK and HAYNES, Circuit Judges.
Case Date:November 24, 2010
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 146

627 F.3d 146 (5th Cir. 2010)

UNITED STATES of America, Plaintiff-Appellee,

v.

Paul Edward THOMAS; Derrick Van Hodges, Defendants-Appellants.

No. 09-40989.

United States Court of Appeals, Fifth Circuit.

November 24, 2010

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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Laurel Franklin Coan, Jr., Asst. U.S. Atty. (argued), Robert James Middleton, Tyler, TX, for U.S.

Deborah Johnson Race (argued), (Court-Appointed), Ireland, Carroll & Kelley, P.C., Tyler, TX, for Thomas.

James Wesley Volberding (argued), (Court-Appointed), Tyler, TX, for Van Hodges.

Appeals from the United States District Court for the Eastern District of Texas.

Before CLEMENT, SOUTHWICK and HAYNES, Circuit Judges.

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LESLIE H. SOUTHWICK, Circuit Judge:

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"

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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-

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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...

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