United States v. Bowers

• Decision Date: 22 January 2016
• Docket Number: No. 14–11585.,14–11585.
• Citation: 811 F.3d 412
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Demetrius Renaldo BOWERS, a.k.a. Fat Cat Bowers, a.k.a. Casino Bowers, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

811 F.3d 412

UNITED STATES of America, Plaintiff–Appellee,

v.Demetrius Renaldo BOWERS, a.k.a. Fat Cat Bowers, a.k.a. Casino Bowers, Defendant–Appellant.

No. 14–11585.

United States Court of Appeals, Eleventh Circuit.

Jan. 22, 2016.

Todd B. Grandy, Susan Hollis Rothstein–Youakim, Arthur Lee Bentley, III, Carlton Curtiss Gammons, Josephine W. Thomas, U.S. Attorney's Office, Tampa, FL, for Plaintiff–Appellee.

Bjorn Erik Brunvand, Bjorn E. Brunvand, PA, Clearwater, FL, for Defendant–Appellant.

Before TJOFLAT and HULL, Circuit Judges, and HALL,^* District Judge.

HALL, District Judge:

This case principally concerns what inferences jurors may permissibly draw from identity evidence from multiple crimes. A jury found Defendant–Appellant Demetrius Bowers guilty of eight counts of armed robbery in violation of 18 U.S.C. § 1951(a) and eight counts of carrying, using, and brandishing a weapon in violation of 18 U.S.C. § 924(c)(1)(A)(ii). The district court sentenced Bowers to 150 months for the § 1951(a) violations and to a mandatory 182 years for the § 924(c) violations, to run consecutively. On appeal, Bowers argues that the district court erred in three ways: (1) by denying his motion to sever the charged counts; (2) by denying his motion for judgment of acquittal based on insufficient identity evidence; and (3) by applying § 924(c)'s mandatory sentencing provisions in violation of the Constitution. After a thorough review of the case and with the benefit of oral argument, we affirm.

I. BACKGROUND

A. The District Court Proceedings

On December 18, 2014, a grand jury charged Bowers with three counts of robbery in violation of 18 U.S.C. § 1951(a) and three corresponding counts of brandishing a weapon in violation of 18 U.S.C. § 924(c)(1)(A)(ii). In its pre-trial order, the district court ordered that all pre-trial motions be filed by January 14, 2013. Besides an unopposed motion to continue the trial, Bowers did not file any motions by that date.

Subsequently, on April 16, 2013, a grand jury returned a superseding indictment charging Bowers with eight counts of armed robbery under 18 U.S.C § 1951(a) and eight counts of using, carrying, and brandishing a firearm during a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A)(ii). In light of the superseding indictment, the district court reopened the period for pre-trial motions and set a new deadline of May 1, 2013. Again Bowers did not file any motions before the deadline. On June 5, 2013, Bowers filed a motion to sever the sixteen counts into eight separate trials, one for each alleged robbery. When the motion was filed, Bowers's trial was scheduled to start twelve days later on June 17, 2013.

In its order denying severance, the district court observed that "[a]t no time has Defendant filed a motion requesting additional time to file pretrial motions nor has he shown good cause for filing his motion to sever at this late date." The court thus denied Bowers's motion as untimely. The district court also denied Bowers's motion to sever on the merits, finding that joinder of the claims was proper and that any potential prejudice could be cured by use of Eleventh Circuit Pattern Jury Instruction B–10.2.

Thereafter, Bowers proceeded to trial on all sixteen counts. At the close of the Government's case, Bowers moved for judgment of acquittal on the grounds that the Government failed to present sufficient evidence identifying him as the perpetrator of all eight robberies. The court deferred ruling on the motion pursuant to Federal Rule of Criminal Procedure 29(b). Bowers later renewed his motion after the Government did not present a rebuttal case and the court again deferred its ruling. After a four-day trial, the jury found Bowers guilty on all sixteen counts. Bowers then renewed his motion a second time and also moved for a new trial. The court denied both motions.

Prior to sentencing, Bowers moved to declare 18 U.S.C. §§ 924(c)(1)(A)(ii) and 924(c)(1)(C)(i) unconstitutional on their face and as applied against him. After argument at the sentencing hearing, the district court denied Bowers's motion and sentenced him to consecutive terms of imprisonment of 140 months for the § 1951(a) violations and a mandatory 182 years for the § 924(c)(1)(A)(ii) violations. Bowers timely appealed the denial of his motions to sever, for judgment of acquittal, and challenging the constitutionality of his 182–year sentence for the § 924(c) convictions.

B. Evidence Presented at Trial

Because there are eight alleged robberies in this case, the evidence is relatively voluminous, although not particularly complex. The admitted evidence consists primarily of witness descriptions of the robberies and the perpetrator, law enforcement testimony regarding the investigation, the crime scenes, DNA evidence, and cell phone "hit" evidence. We recount the evidence in detail to determine whether it was sufficient to support the jury's verdict. The evidence below is taken in the light most favorable to the government. See United States v. Isnadin, 742 F.3d 1278, 1303 (11th Cir.2014).

1. Bowers's Ownership of a MetroPCS Cell Phone and Related Identifying Evidence

The following evidence was introduced to establish that Bowers possessed a cell phone that was connected to the robberies. In April 2012, a MetroPCS cell phone account was opened in the name of "Strizzle Young." The account's phone number was associated with a Kyocera Domino grape-colored cell phone. In June and November, two photographs of Bowers were saved to the phone, and in October a text message addressed to "Demetrius" was sent to the phone.

In September 2012, Bowers opened an account with Amscot Financial, a provider of financial services such as money transfers, which he used to receive three money transfers. Each time he received money via Amscot, he listed the number associated with the MetroPCS account as his mobile phone. On September 11, 2012, the first time he received a money transfer, Bowers listed 12464 Tansboro Street, Spring Hill, Florida, 34608 as his address. Testimony from Bowers's ex-girlfriend, who lived at that address, established that Bowers lived there in September 2012 and that he moved out at an unspecified date in October. Each time he received money via Amscot, Bowers provided a copy of his Florida Driver's License, which describes Bowers as 5'10? tall. Additionally, Bowers used his EBT card in areas and at times that correspond with cell phone tower hits generated by the MetroPCS phone.

At the time of Bowers's arrest on November 21, 2012, he possessed a MetroPCS Kyocera Domino grape-colored cell phone. Officers called the number they believed to be associated with Bowers and the phone rang, at which point Bowers "became upset" and yelled to people in the area to turn off his phone. Further, on a call from the jail, he stated that "they got my calls logged," referring, apparently, to the MetroPCS call log that the Government later introduced at trial. On another call, a female speaker momentarily referred to Bowers as "Strizzle" before he immediately interrupted her. Bowers replied that she should "tighten up," she was "tripping," and clarified that he was referring to "what you chirping" and "what you just hollered."

The Government also introduced an incriminating text message sent from his phone. On October 29, 2012, after six of the robberies occurred, Bowers sent a message indicating he intended to move into a new residence that cost $1,000 a month in rent. A wage-and-hour report indicated that Bowers received only $1,649.07 in total wages during the second and third quarters of 2012.

An analyst and record custodian from MetroPCS testified as a fact witness regarding cell phone towers and telephone records.¹ He explained that when cell phones are carried from location to location while activated, they hit cell towers in the network. Notably, on MetroPCS's network, this only occurs while a call is taking place, not when a phone is simply turned on while traveling. Hit records are maintained by cell service providers' call logs, including MetroPCS. An agent with the Bureau of Alcohol, Tobacco, Firearms, and Explosives (BATF) testified concerning the call logs and cell tower data. He determined that Bowers's cell phone was "not in use" during the robberies, but that the cell phone data during the surrounding hours "could not eliminate" Bowers as a possible perpetrator. His specific testimony regarding each robbery is addressed below.

2. Papa John's (Tampa, Florida), 9/23/2012

The first charged robbery occurred on September 23, 2012 at 1:10 a.m. at a Papa John's restaurant on 7891 Gunn Highway in Tampa, Florida. The robber used a concrete paver to shatter a window adjacent to the entry door. Two employees were present when the robber entered. The first employee witness described the robber as an African–American male, taller than herself and a normal weight, wearing a black turtle neck, ribbed ski mask and black shoes, and carrying a black gun.

The second employee witness described the robber as an African–American male, being approximately 6'0? tall and weighing a little less than 180 pounds. According to the employee, the robber carried a small-caliber black handgun and wore a dark long-sleeved shirt, dark pants, and gloves. Notably, this employee also described the robber as wearing a knit mask that looked like a beanie that was rolled down with holes cut out of it. He said it almost resembled a ski mask.

A Hillsborough County Sheriff's K–9 Deputy responded to the scene ten minutes after the robbery. While searching the parking lot and area surrounding the Papa John's, the deputy noticed a dark object along a fence sixty yards away. As he approached, his canine alerted to the object. The object was a black wool cap with two eye holes, but no mouth hole, cut out. The cap was submitted to the Florida Department of Law Enforcement for DNA testing and returned four possible contributors of DNA on the cap's exterior; however, no major...