U.S. v. Beverly, No. 00-3617.

CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)
Writing for the CourtBoggs
Citation369 F.3d 516
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Noah BEVERLY; Johnny P. Crockett; Douglas A. Turns, Defendants-Appellants.
Decision Date12 May 2004
Docket NumberNo. 00-3741.,No. 00-3618.,No. 00-3617.
369 F.3d 516
UNITED STATES of America, Plaintiff-Appellee,
v.
Noah BEVERLY; Johnny P. Crockett; Douglas A. Turns, Defendants-Appellants.
No. 00-3617.
No. 00-3618.
No. 00-3741.
United States Court of Appeals, Sixth Circuit.
Argued: February 4, 2003.
Decided and Filed: May 12, 2004.

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Terry Lehmann, Asst. U.S. Attorney, Cincinnati, OH, David J. Bosley (briefed), J. Michael Marous (argued and briefed), Asst. U.S. Attorney, U.S. Attorney's Office Southern District of Ohio, Columbus, OH, for Plaintiff-Appellee in 00-3617, 00-3618 and 00-3741.

Richard A. Cline (argued and briefed), Mitchell, Allen, Catalano & Boda, Columbus, OH, for Defendant-Appellant in 00-3617.

James R. Taylor (briefed), Kevin P. Durkin (argued and briefed), Taylor & Durkin, Columbus, OH, for Defendant-Appellant in 00-3618.

Gary W. Deeds (argued and briefed), Columbus, OH, for Defendant-Appellant 00-3741.

Before: BOGGS, Chief Judge; NORRIS, Circuit Judge; and BELL, Chief District Judge.*

OPINION

BOGGS, Chief Judge.


Noah Beverly, Douglas A. Turns, and Johnny P. Crockett were indicted for multiple crimes by a federal grand jury, charging them with conspiracy to commit armed bank robbery, in violation of 18 U.S.C. § 371, committing various armed bank robberies, in violation of 18 U.S.C. § 2113(a) and (d), and possessing firearms during and in relation to these crimes of violence, in violation of 18 U.S.C. § 924(c). After two evidentiary hearings, a jury trial commenced in which all three defendants were tried together. On February 8, 2000, the jury returned a verdict of guilty on all counts against Beverly and Turns. Crockett was found guilty of conspiracy to commit armed bank robbery, of robbing Security National Bank, and the Park National Bank in Hebron, Ohio, and of using a firearm in commission of those crimes, but was found not guilty of robbing two other banks with another defendant not involved in this appeal.

All three defendants have appealed this verdict. Beverly appeals the introduction of mitochondrial DNA (mtDNA) evidence

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against him at trial, arguing that the evidence was not scientifically reliable and, even if reliable, its probative value was outweighed by its prejudicial effect. In addition, Beverly joins the other defendants in bringing a Batson challenge, arguing that the district court committed clear error when it granted the government's peremptory challenge against an African-American who could have been seated on the jury panel. Turns appeals the district court's decision to join his trial with the other two defendants, and further argues that the district court abused its discretion in denying his Rule 14 motion to sever his trial. Turns also contends that the district court abused its discretion in limiting his examination of a government witness, that the district court erred in its denial of his motion for acquittal, and that his sentence of seventy-one and one half years, largely mandated by the requirement of consecutive sentencing under 18 U.S.C. § 924(c)(1)(D)(ii), is cruel and unusual punishment in violation of the Eighth Amendment. Crockett appeals his conviction on the basis of prosecutorial misconduct and argues that the district court erred in its denial of his motion for acquittal. In addition, Crockett contends that the district court abused its discretion in failing to excuse a potential juror for cause, in admitting testimony regarding his wife's pretrial identification of him in a bank surveillance photo, in admitting into evidence his failure to file income tax returns, and in limiting his examination of a government witness's probation officer. For the reasons set forth below, we affirm the defendants' convictions.

I

This case is about a series of bank robberies that occurred in Ohio between September 1994 and November 1995. Much of what happened was described by two men who testified at trial: Anthony Lavelle Rogers and his half-brother Melvin Warren, Jr.. In each of the seven robberies, either Rogers, Warren, or both, participated in the event and so testified to what occurred. Neither Rogers nor Warren are defendants in this case because they both entered into a plea agreement as part of a guilty plea to armed bank robbery.

Delaware County Bank and Trust

According to Rogers's testimony at trial, on September 26, 1994, Rogers and Turns stole a Chevrolet Blazer from a trucking company and robbed the Delaware County Bank and Trust in Ashley, Ohio on the following day. Turns waited outside, feigning mechanical problems, while Rogers, having borrowed Turns's gun, went inside and robbed the bank. Rogers carried a silver pistol provided by Turns. After the robbery, the two drove to Columbus, Ohio where Turns's sister, Starla Turns, had a house. Rogers claimed he gave Turns $5,000 of the more than $70,000 he took from the vault.

Rogers was dating Starla and he was planning on leaving for Disney World with her the next day, so that night Rogers rented a hotel room near the Columbus airport. When Rogers realized that it would unwise to attempt to take the gun on the airplane, he spoke with Turns about what he should do with it. Turns apparently suggested that Rogers leave it underneath the bushes near the hotel, where Turns could later recover it. Turns has a different version. According to the testimony of FBI Agent Harry Trombitas, Turns told him that he, Turns, had found the gun in his car after having lent the vehicle to Rogers. Turns then informed Agent Trombitas about the weapon, and stashed it under some bushes by this same hotel while waiting for the FBI to come and pick it up. In Florida, while visiting

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Disney World, Rogers and Starla used various forms of false identification, which were allegedly provided to them by Turns.

Within ten days of the robbery, Lisa Dennis, Turns's girlfriend, made two round-number cash deposits to her bank account. The first deposit, made two days after the robbery, was for $500, and a week later, a second deposit of $600 was made. According to testimony presented at trial, neither Turns nor his girlfriend had a source of income that would explain these deposits. Turns's entire income during this period was apparently derived from unemployment benefits and his girlfriend, Dennis, was only receiving general assistance and funds from Aid to Dependant Children.

Eleven months later, Turns provided details of this robbery to the FBI, but denied his own involvement. Turns placed the amount stolen as between $70,000 and $80,000. The actual amount stolen was $72,500. Turns implicated Rogers, describing his disguise and noting that he had seen Rogers in a white Chevrolet Blazer with Kentucky license plates.

Park National Bank in Kirkersville, Ohio

In December 1994, Rogers, his half-brother Melvin Warren, and Turns drove Warren's burgundy Cadillac to a Meijer shopping center in Columbus, Ohio, where Rogers stole a car. The theft was recorded by surveillance cameras. Turns, Rogers, and Warren drove to Kirkersville, Ohio. Rogers and Warren then took the stolen car and drove to the bank, while Turns waited with Warren's Cadillac at a nearby freeway on-ramp. Again, Turns feigned mechanical problems while Rogers and Warren robbed the Park National Bank, with Rogers using a gun he had gotten from Turns. Warren used a gun obtained from Beverly. After robbing the bank, Rogers and Warren drove the stolen car to the freeway on-ramp where they shifted into the Cadillac with Turns. Warren, directed by Turns, drove to Turns's brother's house, where the three counted their take and divided it into thirds.

Several weeks after the robbery, Warren and Rogers were stopped by the police and Rogers used Turns's driver's license as identification. Though Rogers was released, a gun was recovered from the car and Warren was arrested. The ownership of the gun was traced back to Turns, who had purchased the weapon on September 9, 1993. This gun was allegedly provided to Rogers by Turns prior to the Park National Bank robbery.

Eight months after the December 30, 1994 robbery, Turns stated to the FBI that he had been at the aforementioned shopping center with the Meijer store that day with his brother and had happened to see Warren and Rogers there. Turns stated that Warren and Rogers told him details about the robbery later in the day, including the fact that they had taken approximately $35,000. The actual amount stolen was $31,377.

National City Bank

Another bank robbery occurred five months later, on May 12, 1995, involving Warren, Beverly, and a third man named Colby. Warren testified that while the three of them were drinking at Beverly's house they decided to rob a bank. Warren, Beverly, and Colby parked at a nearby auto-parts store and walked into the National City Bank on Lockbourne Road in Columbus. Once in the bank, they began shouting for everyone to put their hands up. Beverly carried a revolver. The robbery netted $3,428. It was filmed by bank surveillance cameras. Warren identified Beverly as one of the robbers in

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the surveillance photographs shown at trial.

Security National Bank

On May 18, 1995, Warren, Rogers, Beverly, and Crockett robbed the Security National Bank in Springfield, Ohio. The four met before the robbery at Beverly's apartment, where they prepared disguises, including masks and bandannas. They then drove together to Springfield in Warren's tan Lincoln Town Car. Once in Springfield, the four drove to a hospital, where Rogers stole a car to use as a getaway vehicle in the robbery. They found an alley behind some buildings across the street from the bank, where they parked the Lincoln. Rogers, Warren, Beverly, and Crockett entered the bank and Crockett, wearing a pair of pantyhose over his head, jumped over the teller's counter and...

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197 practice notes
  • U.S. v. Arnold, No. 04-5384.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • May 18, 2007
    ...quotation marks omitted). We apply abuse-of-discretion review to a district court's application of the rule. See United States v. Beverly, 369 F.3d 516, 540 (6th The 911 Call. Gordon's statements to the 911 operator readily satisfy the first and third prongs of the test. As to the first req......
  • U.S. v. Ezell, No. CRIM.A.02-815.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • March 3, 2006
    ..."there is no merit to [a defendant's] Eighth Amendment challenge to his sentence under § 924(c)." Id. at 753. In United States v. Beverly, 369 F.3d 516 (6th Cir.2004), the Sixth Circuit rejected an Eighth Amendment challenge to § 924(c) sentences, noting that "the Supreme Court has never he......
  • Storey v. State, No. SC 85980.
    • United States
    • United States State Supreme Court of Missouri
    • November 22, 2005
    ...4. Although mitochondrial DNA is not a reliable indicator, it is gaining acceptance as an exclusion method. See United States v. Beverly, 369 F.3d 516, 531 (6th Cir.2004) (cert. denied ___ U.S. ___, 125 S.Ct. 122, 160 L.Ed.2d 188 (2004)). According to the 6th Circuit's Thus, this technique ......
  • Hodge v. White, CIVIL ACTION NO. 13-5-DLB-EBA
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Eastern District of Kentucky
    • August 17, 2016
    ...against the defendant.24 Id. These comments must be viewed "within the context of the trial as a whole." United States v. Beverly, 369 F.3d 516, 543 (6th Cir. 2004).Page 84 Hodge cites the following comments as examples of Craft's reflections on his own reputation and his personal opinion a......
  • Request a trial to view additional results
200 cases
  • U.S. v. Arnold, No. 04-5384.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • May 18, 2007
    ...quotation marks omitted). We apply abuse-of-discretion review to a district court's application of the rule. See United States v. Beverly, 369 F.3d 516, 540 (6th The 911 Call. Gordon's statements to the 911 operator readily satisfy the first and third prongs of the test. As to the first req......
  • U.S. v. Ezell, No. CRIM.A.02-815.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • March 3, 2006
    ..."there is no merit to [a defendant's] Eighth Amendment challenge to his sentence under § 924(c)." Id. at 753. In United States v. Beverly, 369 F.3d 516 (6th Cir.2004), the Sixth Circuit rejected an Eighth Amendment challenge to § 924(c) sentences, noting that "the Supreme Court has never he......
  • Storey v. State, No. SC 85980.
    • United States
    • United States State Supreme Court of Missouri
    • November 22, 2005
    ...4. Although mitochondrial DNA is not a reliable indicator, it is gaining acceptance as an exclusion method. See United States v. Beverly, 369 F.3d 516, 531 (6th Cir.2004) (cert. denied ___ U.S. ___, 125 S.Ct. 122, 160 L.Ed.2d 188 (2004)). According to the 6th Circuit's Thus, this technique ......
  • Hodge v. White, CIVIL ACTION NO. 13-5-DLB-EBA
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Eastern District of Kentucky
    • August 17, 2016
    ...against the defendant.24 Id. These comments must be viewed "within the context of the trial as a whole." United States v. Beverly, 369 F.3d 516, 543 (6th Cir. 2004).Page 84 Hodge cites the following comments as examples of Craft's reflections on his own reputation and his personal opinion a......
  • Request a trial to view additional results

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