U.S. v. Beasley

• Decision Date: 22 January 1997
• Docket Number: Nos. 95-3362,95-3510,s. 95-3362
• Citation: 102 F.3d 1440
• Parties: , 46 Fed. R. Evid. Serv. 1 UNITED STATES of America, Appellee, v. Reginald Pierre BEASLEY, Appellant. UNITED STATES of America, Appellee, v. Oliver Lawrence BEASLEY, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1440

102 F.3d 1440

65 USLW 2471, 46 Fed. R. Evid. Serv. 1

UNITED STATES of America, Appellee, v. Reginald Pierre BEASLEY, Appellant.

UNITED STATES of America, Appellee, v. Oliver Lawrence BEASLEY, Appellant.

Nos. 95-3362, 95-3510.

United States Court of Appeals,

Eighth Circuit.

Submitted June 12, 1996.

Decided Dec. 18, 1996.

Rehearing and Suggestion for Rehearing En Banc Denied Jan. 22, 1997.

Paul Engh, Minneapolis, MN, argued, for Reginald Beasley.

L. Marshall Smith, St. Paul, MN, argued, for Oliver Beasley.

Michael W. Ward, Minneapolis, MN, argued (Mark D. Larsen, on the brief), for appellee.

Before BOWMAN, HEANEY, and BEAM, Circuit Judges.

BOWMAN, Circuit Judge.

Reginald Beasley and Oliver Beasley appeal from a final judgment entered in the District Court ¹ finding them guilty upon a jury verdict of one count of conspiring to commit bank robbery, in violation of 18 U.S.C. §§ 371, 2113(a), (d) (1994); two counts of armed bank robbery, in violation of 18 U.S.C. §§ 2, 2113(a), (d) (1994); and four counts of use of a firearm in a crime of violence, in violation of 18 U.S.C. §§ 2, 924(c)(1) (1994). Additionally, Reginald Beasley was found guilty of possessing an illegal firearm, in violation of 26 U.S.C. §§ 5841, 5845(a)(2), and 5861(d) (1994), and Oliver Beasley was found guilty of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g) (1994). The District Court sentenced Reginald Beasley to 447 months imprisonment and Oliver Beasley to 438 months imprisonment. Both defendants appeal their convictions. We affirm.

I.

This case arises out of the events surrounding two bank robberies in the Minneapolis area in the fall of 1994. The following is a summary of the facts material to the issues raised on this appeal.

At approximately noon on October 13, 1994, three masked men, each brandishing a firearm, robbed the TCF Bank in Brooklyn Center, Minnesota. A man wearing a rubber "President Clinton" mask and armed with a double-barreled sawed-off shotgun and a man wearing an "old man" mask and armed with a semi-automatic pistol ordered customers to the floor and instructed the tellers to empty the cash from the teller drawers. Each man repeatedly threatened the lives of bank customers and employees. A third robber, wearing a "monster" or "Godzilla" mask, terrorized bank customers and employees in the bank's lobby.

Police officers arrived on the scene to witness the robbers leaving in a brown car. As the getaway car accelerated past the police officers, the robbers fired shots from a handgun and a shotgun. After seeking cover inside their squad car, the officers then proceeded after the robbers, following them into a nearby apartment complex parking lot. After momentarily losing sight of the getaway car, the officers saw two of the robbers running away from the getaway car, now parked in front of one of the apartment buildings. Defendant Reginald Beasley was found hiding on the second-floor balcony of that apartment building. He was wearing the pants and shoes that bank surveillance cameras had captured on the robber with the "President Clinton" mask. Next, officers seized Dale Owens, the robber wearing the "Godzilla" mask, after he tried to escape from backup officers into a locked apartment building. ² Defendant Oliver Beasley was apprehended a few minutes later. After diving through the window screen of one of the apartments and running through the apartment into the building hallway, Oliver Beasley was arrested trying to leave the building. Officers later found a semi-automatic pistol on an interior stairwell of the building.

The getaway car had been stolen earlier that morning. Just in front of the abandoned getaway car, police recovered a .380 semiautomatic pistol. A government witness testified that he sold this gun to Reginald Beasley. Inside the car police found masks of "President Clinton," an "old man," and "Godzilla," spent shell casings, and a sawed-off shotgun. Two human hairs were found in the "old man" rubber mask. DNA testing using the polymerase chain reaction (PCR) method revealed that the DNA profile of the hairs found in the mask matched that of Oliver Beasley.

On the morning of September 22, 1994, several weeks prior to the robbery of the TCF Bank, the First Bank branch in Brooklyn Park, Minnesota, was robbed by two men, each wearing a ski mask with eye holes cut out. One man carried a sawed-off shotgun and the other a semi-automatic pistol. Each robber threatened bank customers and employees at gunpoint before leaving with approximately $10,000 in cash.

Shortly after the robbery, police found the robbers' getaway car in the parking lot of a nearby apartment complex. The getaway car, stolen earlier that morning, was found abandoned next to the apartment building of Oliver Beasley. Almost one month later, a box of .380 ammunition, two ski masks, a pair of sunglasses from the stolen vehicle, and a pair of dark gloves were discovered in the elevator shaft of Oliver Beasley's apartment building. Government witness Tracy Wilson testified that the ski masks looked similar to the masks that Reginald Beasley and Shenethia Davis, Reginald Beasley's girlfriend at the time, had made in Wilson's presence four months before the First Bank robbery. Wilson testified that he last saw the masks in the possession of Reginald Beasley. Surveillance cameras at First Bank depicted two men wearing ski masks and dark cloth gloves similar to the masks and gloves recovered from the elevator shaft and carrying firearms similar in characteristics to those recovered after the TCF bank robbery. Furthermore, Davis testified that defendants informed her of their intent to go to Minnesota three days before the First Bank robbery and that defendants returned to East St. Louis, Illinois, the day after the robbery with $4,000 in cash.

II.

For reversal, both defendants argue that: (1) a letter from the United States Attorney's office admitted into evidence was hearsay and it improperly vouched for Davis's testimony; (2) admission of a prior consistent statement of Davis was erroneous; (3) the trial court erred in admitting evidence of the masks allegedly worn by defendants during the First Bank robbery; (4) the evidence is insufficient to support the jury's verdict as to the First Bank robbery; (5) the trial court committed plain error in instructing the jury as to the definition of "use" in 18 U.S.C. § 924(c) (1994); and (6) the trial court erred in not exercising its supervisory powers over the United States Attorney and dismissing or modifying the indictment. In addition, Oliver Beasley contends that (1) DNA evidence based on PCR testing should not have been admitted; (2) the trial court abused its discretion in denying his motion to sever; and (3) the trial court should have granted his motion for mistrial after it erroneously read to the jury, as part of the reading of the indictment, his prior felonies.

III.

First, we address the arguments made only by Oliver Beasley.

A.

Oliver Beasley argues that the District Court erred in admitting DNA evidence of two hairs found in the "old man" mask worn during the TCF robbery. The mask was left in the getaway car when, following the TCF robbery, the suspects fled the car on foot. Before trial, the District Court conducted an evidentiary hearing concerning the admissibility of DNA evidence using the polymerase chain reaction (PCR) method of DNA typing. At the close of this hearing, the District Court found the evidence admissible. At trial, a government witness, utilizing the PCR technique of DNA analysis, testified that the PCR analysis indicated that the DNA profile of the hair found in the mask matched that of the hair of Oliver Beasley. Beasley contends that PCR testing does not meet the standards of admissibility established by Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and that even if PCR testing did meet those standards, the protocol and procedures at the Minnesota Bureau of Criminal Apprehension Forensic Science Laboratory (BCA Lab) were not adequate.

The standard of review for a trial court's decisions regarding the admissibility of evidence, including DNA evidence, is abuse of discretion. See United States v. Johnson, 56 F.3d 947, 952 (8th Cir.1995). This Court has already taken judicial notice of the reliability of the general theory and techniques of DNA profiling, and specifically the use of the restriction fragment length polymorphism (RFLP) procedure. See United States v. Martinez, 3 F.3d 1191, 1197 (8th Cir.1993) (citing United States v. Jakobetz, 955 F.2d 786, 799-800 (2d Cir.), cert. denied, 506 U.S. 834, 113 S.Ct. 104, 121 L.Ed.2d 63 (1992)), cert. denied, 510 U.S. 1062, 114 S.Ct. 734, 126 L.Ed.2d 697 (1994). ³ The PCR method, however, has not previously been reviewed by this Court. Thus, the District Court appropriately held an evidentiary hearing under standards announced in Daubert to determine whether the PCR method is reliable and whether the proffered DNA evidence would be admitted. See id.

At the Daubert hearing, which consumed more than three days, the District Court heard expert witnesses for both the government and the defense and received numerous exhibits. Based on the evidence adduced at the hearing, the court, having considered defendant's objections to the government's proffered DNA evidence, found the evidence admissible. In its written order, the court carefully set forth its particularized findings regarding the PCR method of DNA typing. These findings provide a concise summary of this method of DNA testing, and we quote them in full, omitting only the District Court's footnotes.

The PCR method is based upon the natural DNA replication process. By utilizing the PCR method, one can produce a substantial number of specific segments of human DNA which can then be typed. Because 99 percent of the DNA molecule is the same for every individual, the DNA...