U.S. v. McCarthy, 00-2891

• Citation: 244 F.3d 998
• Decision Date: 09 January 2001
• Docket Number: No. 00-2891,00-2891
• Parties: (8th Cir. 2001) UNITED STATES OF AMERICA, APPELLEE, v. MICHAEL E. MCCARTHY, APPELLANT. Submitted:
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 998

244 F.3d 998 (8th Cir. 2001)

UNITED STATES OF AMERICA, APPELLEE, v. MICHAEL E. MCCARTHY, APPELLANT.

No. 00-2891

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

Submitted: January 9, 2001

March 30, 2001

Appeal from the United States District Court for the Western District of Missouri.

Before Loken, Heaney, and Bye, Circuit Judges.

Heaney, Circuit Judge.

Michael McCarthy challenges the sufficiency of the evidence used to convict him of bank robbery and firearm charges. We affirm the judgment of the district court.¹

I.

On February 23, 1998, Steven Bogguess and a man wearing a red jacket entered the Mercantile Bank on 200 Northeast Vivion Road, Kansas City, Missouri, and robbed it. Both men wore stocking masks, and surveillance photographs showed the man in the red jacket holding a firearm in his left hand. As Bogguess and the man in the red jacket made their way from the bank to their getaway car, an off-duty police officer who had just finished his banking shot and killed Bogguess. The man in the red jacket and the driver of the getaway car escaped, leaving Bogguess's body in the parking lot. Testimony of witnesses who saw the robbery unfold provided a general description of the man in the red jacket, but did not establish his identity.

Shortly after the robbers fled the scene, the authorities found their getaway car abandoned in a near-by parking lot. From the front passenger's side of the car, the authorities recovered, inter alia, a stocking cap which they sent to the crime laboratory for deoxyribonucleic acid (DNA) analysis.

An anonymous tip eventually led the authorities to indict McCarthy on one count of bank robbery, in violation of 18 U.S.C. § 2113(a), (d); and one count of using and carrying a firearm in relation to a crime of violence, in violation of 18 U.S.C. § 924(c). During McCarthy's three-day jury trial, a DNA expert and several jailhouse informants provided testimony connecting McCarthy to the bank robbery. The jury convicted McCarthy on both counts, and the district court sentenced McCarthy to life imprisonment on the section 2113 violation, and a consecutive five-year sentence on the section 924 violation. McCarthy now appeals, challenging the sufficiency of the evidence presented at his trial.

II.

When considering a challenge to the sufficiency of the evidence used to convict a defendant, we review the evidence in the light most favorable to the verdict, and give the verdict the benefit of all reasonable inferences which might be drawn from the evidence. See United States v. Wilson, 103 F.3d 1402, 1406 (8th Cir. 1997). This is a stringent standard, see id., and we will uphold the verdict if there is an interpretation of the evidence that would allow a reasonable-minded jury to find the defendant guilty beyond a reasonable doubt, see United States v. Beasley, 102 F.3d 1440, 1451 (8th Cir. 1996), cert. denied, 520 U.S. 1246 (1997).

During McCarthy's trial, Frank Booth, the crime laboratory's senior criminalist in trace and DNA evidence, testified that he inspected the stocking cap recovered from the getaway car and found an abundance of dandruff, hairs on both the inside and outside of the cap, and a high degree of amylase acid--an enzyme found in saliva. Booth compared the genetic profile he derived from the dandruff against the genetic profile he derived from McCarthy's blood sample and found that they matched.² In fact, Booth concluded only fifty-one people out of ten billion could have matched the profile.

Booth also compared the hairs he collected from the stocking cap to a hair sample from McCarthy. Of the thirteen hairs Booth found on the outside of the cap, five hairs were suitable for testing, and only one of the hairs matched McCarthy; Booth testified the other hairs were "inconclusive," i.e, they were either too short, frayed, opaque, had features common to the general population, or Booth could not orient the hair in relation to its root. Booth collected fifteen hairs from the outside of the stocking cap and matched four of them to McCarthy. The remaining eleven hairs were inconclusive.

Booth testified he did not test the saliva he found on the stocking cap because the abundance of dandruff would have obstructed his analysis of the saliva. He conceded on cross examination, however, that if one individual contributed the saliva while another individual contributed the dandruff, the genetic profile for the saliva would be different from the genetic profile of the dandruff even if it was contaminated with the dandruff of the other individual. Booth also admitted he did not know how long the dandruff had been in the stocking cap.

Additionally, six jailhouse informants testified against McCarthy. One informant testified he had been incarcerated with McCarthy and Bogguess in a drug-rehabilitation center in December 1997, and he had overheard McCarthy make incriminating statements about his plans to rob a bank. The other five informants had been incarcerated with McCarthy at one point or another and testified McCarthy had either asked them to participate in the robbery, confessed to them his involvement in the robbery, or asked them to lie about his involvement in other robberies. Of these five informants, each of them testified against McCarthy in exchange for a potential sentence reduction.

In his defense, McCarthy told the jury he was helping his sister clean her house when the robbery occurred. He believed the stocking cap recovered from the getaway car looked similar to one he wore during smoke...