U.S. v. Davis, 00-1952

• Decision Date: 13 June 2000
• Docket Number: No. 00-1952,00-1952
• Citation: 244 F.3d 666
• Parties: (8th Cir. 2001) UNITED STATES OF AMERICA, APPELLANT, v. WILLIAM IRWIN DAVIS, JR., APPELLEE. UNITED STATES OF AMERICA, APPELLANT, v. KEVIN PAUL MOYER, APPELLEE. UNITED STATES OF AMERICA, APPELLANT, v. WILLIAM JOHN IRVIN, JR., APPELLEE. Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 666

244 F.3d 666 (8th Cir. 2001)

UNITED STATES OF AMERICA, APPELLANT, v. WILLIAM IRWIN DAVIS, JR., APPELLEE.

UNITED STATES OF AMERICA, APPELLANT, v. KEVIN PAUL MOYER, APPELLEE.

UNITED STATES OF AMERICA, APPELLANT, v. WILLIAM JOHN IRVIN, JR., APPELLEE.

No. 00-1952

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

Submitted: June 13, 2000

Filed: March 29, 2001

Appeal from the United States District Court for the Southern District of Iowa

Before Wollman, Chief Judge, McMILLIAN, Circuit Judge, and Panner,¹ Senior District Judge.

McMILLIAN, Circuit Judge.

The United States (the government) appeals from an order entered in the District Court² for the Southern District of Iowa granting defendants' motion to exclude certain DNA evidence as a discovery sanction against the government. For reversal, the government argues that the district court abused its discretion in excluding this DNA evidence. For the reasons discussed below, we affirm the order of the district court.

The district court had original subject matter jurisdiction over this criminal matter pursuant to 18 U.S.C. § 3231. We have jurisdiction over this interlocutory appeal by the government pursuant to 18 U.S.C. § 3731. See United States v. Mavrokordatos, 933 F.2d 843, 846 (10th Cir. 1991) (holding order excluding evidence as a discovery sanction was an appealable order pursuant to 18 U.S.C. § 3731). The government filed a timely notice of appeal pursuant to Fed. R. App. P. 4(b)(1)(B).

According to the government's theory of the case, on January 7, 2000, at about 8:30 a.m., William Irwin Davis, Jr., and Kevin Paul Moyer, who were armed and wearing masks like those worn in the movie "Scream," entered the employee entrance of the Bank of America located on S.E. Army Post Road in Des Moines, Iowa. Davis directed a bank employee and another individual into the bank vault and told the bank employee to fill a bag with money. Moyer kept two other bank employees in the main lobby. The robbers obtained about $115,600.00 and then locked the bank employees and the other individual in the basement. They then attempted to leave but found themselves locked inside the bank. William John Irvin, Jr., who had been waiting outside in a 1996 maroon Chevy Blazer, drove the Blazer through the glass front door of the bank to enable Davis and Moyer to escape. They fled in the Blazer and were chased by several police cars. The Blazer was later found abandoned on the southside of Des Moines. The police apprehended them later that day on the southside of Des Moines.

Davis, Moyer and Irvin (hereinafter referred to collectively as defendants) were initially charged in state court with robbery in the first degree. On February 15, 2000, a federal grand jury indicted defendants, charging them with conspiracy to commit armed bank robbery, in violation of 18 U.S.C. § 371, armed bank robbery, in violation of 18 U.S.C. § 2113(a), (d), use of a firearm in relation to a crime of violence, in violation of 18 U.S.C. § 924(c), and unlawful possession of a firearm, in violation of 18 U.S.C. § 922(g). On February 18, 2000, defendants made their initial appearance before a magistrate judge; the government was required to produce Fed. R. Crim. P. 16 discovery materials by February 28, 2000. Defendants were ordered detained pending trial, and the case was scheduled for trial during the criminal trial period beginning April 3, 2000.

On March 24, 2000, FBI special agent Jeff Atwood contacted Paul J. Bush, a criminalist with the Iowa Division of Criminal Investigation, State Crime Laboratory, and requested him to expedite the DNA testing because the trial was scheduled to begin on April 3. The lab had received DNA samples from defendants, two stocking caps and two "Scream" masks on February 4, 2000. Bush expedited the DNA testing, orally reported the preliminary results to the government on March 30, 2000, and submitted his written report on March 31, 2000. The results of the DNA testing were that one "Scream" mask matched Moyer, the other "Scream" mask matched Davis, the gray stocking cap matched Irvin, and the black stocking cap matched both Irvin and Davis.

On March 27, 2000, the magistrate judge held a hearing on Moyer's motion for discovery about three other bank robberies that the government believed had been committed by defendants. In addition, Irvin had written a letter to the court about proceeding pro se. The magistrate judge did not rule on Irvin's motion for leave to proceed pro se but did appoint counsel to advise him on the issue. The case was assigned to Chief Judge Longstaff for trial on April 3, 2000. The government did not mention its request to expedite the DNA testing.

On March 30, 2000, the district court considered Irvin's motion for leave to proceed pro se. After making a full record on the motion, including the possibility that Irvin's trial might be severed from his co-defendants if he were to proceed pro se, the district court granted Irvin's motion for leave to proceed pro se and appointed his attorney as "stand by" counsel. Moyer and Davis then requested a severance on the ground that they would be prejudiced by going to trial with a pro se co-defendant and the complication of DNA evidence. The government opposed the motion for severance. The district court then inquired about the DNA evidence. The government stated that a written report would be completed the next day (March 31) and that it had already orally informed defense counsel of the preliminary results just before the hearing. The district court requested the government to make the written report available to defense counsel as soon as it had been received. Counsel for Moyer then stated that Moyer would move to exclude the DNA evidence as untimely. Counsel for Moyer and Davis indicated that they would not seek a continuance. The district court then stated that a hearing on the DNA evidence would be held the next day at 1:30 p.m. The district court then granted Irvin's motion for leave to proceed pro se and Davis's and Moyer's motions for severance and set Davis's and Moyer's trial for April 3, 2000, noting that Irvin's trial would be rescheduled for a later date.

On March 31, 2000, at about 1:00 p.m., the government faxed the written DNA evidence report to defense counsel and the district court. Moyer filed a motion to suppress on the ground that there was no probable cause for the hair and saliva samples used in the DNA testing. Counsel for Davis and Moyer orally moved to exclude the DNA evidence as untimely and rejected any continuance of the April 3 trial date.

At the hearing, Bush testified about the results of the DNA testing and about the testing procedures at the state crime lab. According to the lab procedures, items like the bank robbery evidence which had been received during February were assigned on March 1 to a particular analyst, in this case, to him. Items are tested on a first-come, first-served basis unless there is a request for expedited testing. Bush testified that on March 24 the FBI requested that he expedite the DNA testing on the bank robbery evidence because trial was scheduled to begin on April 3 and that he had not known about the trial date. Bush began testing the bank robbery items on March 27 and, with the assistance of other staff members, completed the testing, communicated the preliminary results to the government on March 30, and submitted his written report on March 31 at about 12:20 p.m. Bush had not begun testing earlier because of the backlog of cases at the lab. He testified that the DNA testing performed in this case would ordinarily take about four days and that, if he had been requested to do so by February 24, he could have completed the testing by February 28. The government did not explain why it did not request expedited testing until March 24.

Bush also testified that DNA extracted from the "Scream" masks and stocking caps could be used for additional DNA testing, the Polymerase Chain Reaction (PCR) test was used to compare the extracted DNA and defendants' samples, PCR is the DNA test of choice in forensic testing, and there should be enough extracted DNA to perform additional PCR tests.

The district court granted defendants' motion to exclude the DNA evidence. The district court acknowledged that the DNA evidence was "very convincing" that defendants robbed the bank as charged in the indictment, but noted that it had a firm duty to make sure the system worked fairly and that defendants had the right to fully confront and evaluate the evidence that will be used against them in a timely fashion. The district court denied the government's motion to reconsider or, in the alternative, for a one-week continuance so defendants could review and respond to the DNA evidence. The district court also advised Irvin that, if he continued to represent himself, he would not be tried with Davis and Moyer on April 3 and that the DNA evidence would probably be admissible against him in his trial at a later date. After consulting with his stand-by counsel, Irvin withdrew his motion to proceed pro se, requested that representation by counsel and acknowledged that he would be going to trial with his co-defendants on April 3. The government immediately filed its notice of appeal.

On April 3, 2000, the district court further explained its reasons for granting the motion to exclude the DNA evidence. The district court noted that on March 31 the government had furnished the district court and defense counsel with the written report on the DNA evidence that it planned to introduce at trial, which had been scheduled to begin on April 3. The day before, March 30, the government had informed the district court that the DNA testing had been completed and that the preliminary results matched the bank robbery evidence to defendants. The district court characterized the DNA evidence as "critical" to the government's case. The district court also noted that defendants had...