U.S. v. Almendares, 04-1756.

• Citation: 397 F.3d 653
• Decision Date: 11 February 2005
• Docket Number: No. 04-1756.,04-1756.
• Parties: UNITED STATES of America, Plaintiff — Appellee, v. Jose Angel ALMENDARES, Defendant — Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

397 F.3d 653

UNITED STATES of America, Plaintiff — Appellee, v. Jose Angel ALMENDARES, Defendant — Appellant.

No. 04-1756.

United States Court of Appeals, Eighth Circuit.

Submitted: November 15, 2004.

Filed: February 11, 2005.

COPYRIGHT MATERIAL OMITTED

William R. Woodford, argued, Minneapolis, MN (R.J. Zayed, Minneapolis, on the brief), for appellant.

Robert M. Lewis, argued, AUSA, Minneapolis, MN, for appellee.

Before MURPHY, HANSEN, and MELLOY, Circuit Judges.

MURPHY, Circuit Judge.

A jury convicted Jose Angel Almendares of aggravated bank robbery, and the district court¹ sentenced him to 78 months. Almendares argues on appeal that the district court erred by denying his motion to suppress DNA evidence and that it abused its discretion by admitting evidence of a prior armed robbery and by denying his motion for a new trial based on the government's failure to disclose evidence. We affirm.

I.

A masked man armed with a handgun robbed the United Prairie Bank in Round Lake, Minnesota on the morning of June 3, 2003. He used few words and relied mostly on gestures with his gun to direct people around the bank. One of the bank employees, who was forced out of his office and onto his knees, testified that the robber pressed the gun into his neck and shoulder as he knelt. The robber alternated between threatening him and pointing his gun at the two tellers. He placed a white plastic bag with blue lettering on the counter and directed a teller to fill the bag with cash, and she placed over $7,800 in it. Included in the cash was $500 bait money in the form of marked twenty dollar bills.

The robber left the bank through the front entrance. One of the employees watched him go outside, take off his ski mask, and turn the corner, but she was unable to see his face. The bank employees described the robber as an Hispanic man in his twenties or early thirties, between 5'7" and 5'10" tall, weighing 175 to 190 pounds, with a medium to dark complexion. He was wearing shorts, a gray sweatshirt, white work gloves, and a black ski mask with three holes cut out.

Bruce Bentele was stopped at an intersection near the bank when he saw a man come around the corner. He described him to police as Hispanic, 5'8" to 5'9" tall, of medium build, with short dark hair and a mustache. Bentele testified at trial that the man was carrying a white bag and had messy hair that looked like he had taken off a stocking cap. He was about eight feet from Bentele, and he waved and asked Bentele how the day was going as he walked quickly towards a light colored car.

While Craig Patten was stopped at the same intersection, he saw a man run down the street with a white bag after turning the corner. Patten saw him wave to Bentele in his pickup and run to a light blue gray car. He looked around, threw the white bag on the front seat, got into the car, and then accelerated quickly on the way out of town. Patten described the man as an Hispanic male in his mid twenties, with dark hair and a mustache.

Law enforcement officers learned that Jose Almendares had cashed a check at the bank the morning of the robbery, and they arranged an interview with him that evening. Jose acknowledged that he had been at the bank and that he had been driving a gray Chevrolet Lumina which belonged to his brother Holvin. Jose informed the officers that his own car was being repaired, and the next day an officer discovered that Jose had paid a mechanic $1,460 in cash for repairs to his car. That cash included $420 in bait bills from the robbery, as well as $500 in $10 bills wrapped in rubber bands. The United Prairie Bank stores its ten dollar bills in that way.

Officers obtained a search warrant for the place where Almendares lived with his brothers, Alexis, Holvin, and Roger, and his cousin Alex. During the search officers found $1,435 in cash, including three of the $20 bait bills. The bait money was found in Jose's room, along with two shopping bags with blue or purple lettering. In other buildings on the property, the officers found a black ski mask and white gloves similar to those described by witnesses to the robbery. All five Almendares men were arrested. Subsequently officers learned that Jose Almendares had sent a $4,500 wire transfer to Honduras the day after the robbery.

FBI Special Agent Drew Helms showed a photo lineup to Bentele the day the five men were arrested. In the lineup were photographs of the five Almendares men and two other Hispanics. Agent Helms arranged the seven photographs on a table and asked Bentele if he recognized any of the men and from where. After viewing the photographs, Bentele picked up the picture of Holvin Almendares and said "I think this is the guy" or "It looks like this guy but I'm not sure." Helms did not include this information in his 302 report which was turned over to Almendares before trial, together with a handwritten note Helms left for a sheriff's deputy stating "No I.D.!?".

The day after Jose's arrest for the bank robbery, a police officer requested a DNA sample from him as part of an investigation into an earlier robbery and sexual assault at a Mexican variety store in Worthington, Minnesota. That crime had taken place some seven months before, and Worthington is 12 to 15 miles from Round Lake. After realizing that Jose did not speak English well, the officer called a telephone interpreting service. Through the interpreter the officer told Almendares that he was investigating a different case and that he wanted a sample of his DNA. They then went over a consent form, line by line. Because the preprinted form was prepared for search of a car or building, the officer wrote in "DNA sample by mouth" and told the interpreter to tell Almendares that he wanted a sample from his mouth. Almendares signed the consent form, and the interpreter told the officer that Jose had said it was "okay" to take the sample. After Almendares signed the form and the interpreter was about to end the call, the officer asked, "He told you that I can take the sample, right?" The interpreter answered, "yes sir." The DNA evidence collected from Jose Almendares matched the DNA left at Video Lupita, the Mexican variety store, in October 2002, but the DNA collected from the other Almendares men did not.

A preliminary hearing was held on June 9, 2003, four days after Bentele saw the photo lineup. Defense counsel questioned Agent Helms about any photographic lineups that had been conducted during the investigation of the bank robbery. Helms testified that he had conducted such a lineup but that Bentele had not identified anyone and had been unable to distinguish any of the men in the pictures. Jose Almendares was indicted on July 1, 2003, for aggravated bank robbery in violation of 18 U.S.C. § 2113(a), (d).

Almendares moved to suppress the DNA evidence, arguing that he had not consented to the search and that the officer had unreasonably relied on the interpreter's statement that he had. After a de novo review of the record, the district court adopted the report and recommendation of the magistrate judge² to deny the motion. The court found that the officer conducting the search had reasonably believed that Almendares had consented to the search, and it concluded that the evidence would have been inevitably discovered in any event because that officer had been instructed to obtain a search warrant if necessary.

When a defense investigator talked to Bentele, he said that he had identified a man in the lineup as the robber, but he was unable to say who it was he had identified. Due to the inconsistency between Bentele's statement and Agent Helms' testimony at the preliminary hearing, Almendares moved for an order compelling disclosure of any Brady material, in particular "[a]ny identification of persons other than the Defendant by witnesses to the alleged crime(s)." At the motion hearing, the defense again questioned Agent Helms about the lineup, and Helms testified that Bentele had not been able to recognize anyone in the photographs and had not positively identified the robber. The court entered an order compelling disclosure of evidence favorable to the defense, but nothing was provided to indicate Bentele had made any type of identification. A few weeks later a defense investigator showed Bentele the photo lineup that had been entered into evidence during the hearing, but Bentele was unable at that time to identify which photograph he had picked out some four months earlier.

Almendares also moved to exclude evidence of the Video Lupita crime. The court decided to admit evidence of the prior armed robbery, but to exclude any evidence of the sexual assault because of undue prejudice. The parties reached a stipulation to ensure that the jury would not learn about the sex crime, and the court excluded evidence of the sexual assault which had produced the DNA evidence matched with Jose Almendares. Before leaving Video Lupita, the robber had taken the clerk into the back of the store, told her to undress, and then ejaculated on her body. A DNA sample was taken from the victim's underwear, but at trial she testified only that the robber had left material at the scene which had been turned over to the police.

The trial testimony began with bank employees. Barbara Bosma testified that on her way to work the morning of the robbery, she saw a charcoal gray or slate blue Chevy Lumina driven by a man wearing a stocking cap even though the weather was not that cold. She later saw the same man try to get into the bank lobby before it opened at 9:00 a.m. and then go over to the walk up window which opens earlier than the lobby. The teller at the walk up window testified that Jose Almendares was the only window customer before the lobby opened that morning.

The prosecutor called Bentele to the stand on the second day of trial. On direct examination he said that he had identified someone at the lineup who he thought was the robber. Almendares moved...