U.S. v. Moore

• Citation: 572 F.3d 334
• Decision Date: 09 July 2009
• Docket Number: No. 07-3978.,07-3978.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Dontrell Orland MOORE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

572 F.3d 334

UNITED STATES of America, Plaintiff-Appellee, v. Dontrell Orland MOORE, Defendant-Appellant.

No. 07-3978.

United States Court of Appeals, Seventh Circuit.

Argued November 4, 2008.

Decided July 9, 2009.

Lesley J. Miller, Attorney (argued), Office of the United States Attorney, Fort Wayne, IN, for Plaintiff-Appellee.

Sean M. Southern, Attorney (argued), Seyfarth Shaw LLP, Chicago, IL, for Defendant-Appellant.

Before POSNER, WOOD, and TINDER, Circuit Judges.

TINDER, Circuit Judge.

In the early afternoon of January 23, 2007, three men robbed a branch of Tower Bank in Fort Wayne, Indiana. During the robbery, at 1:49 p.m., police officers in the Northeast Indiana Federal Bank Robbery Task Force received an automated text message that the bank had been robbed and that a GPS system embedded in the stolen money was transmitting its location. The GPS was designed to begin transmitting its location as soon as it left the bank drawer where it was kept. Detective Robison, of the Task Force, used a handheld tracker to follow the GPS to the 4200 block of Darby Drive in Fort Wayne. He arrived there ten minutes from the time he received the text indicating the bank had been robbed and joined other law enforcement units that were already in the area at the time. The GPS indicated that it was transmitting within 50 feet of what the GPS identified as 4229 Darby Drive (there is no such address) when it stopped transmitting.

The GPS information, combined with fresh tire tracks at the scene (it was a snowy day), led Robison to believe that the bank robbers had entered the home at 4217 Darby Drive. The police staked out the location, ensuring that nobody came or went, and sought a warrant to enter the home. Fortuitously, Kenyatta Lewis, the 4217 homeowner, arrived home from work with his wife about three hours into the stakeout. The police asked him for permission to search the house, which he granted.

The police first entered the house through the garage, where (because of the tire tracks) the police believed the bank robbers entered. As the police prepared to enter the main part of the house, Joseph Lewis¹, Kenyatta's cousin, walked into the garage and was promptly arrested. The police proceeded through the house to the second floor, where they arrested the defendant Dontrell Moore, who was seated on the toilet in the bathroom, and Dawan Warren, who appeared to be sleeping in one of the bedrooms.

In the room where Warren was found, the police spotted an access panel to the attic, and in the attic they found a variety of clothes that did not belong to the Kenyatta Lewis household, including two masks, a hat, a blue pair of nylon sweatpants with a white stripe, and a football jersey. They also found the smashed GPS transmitter taken from the bank, a black bag with an Ozark Trail label, a gun, bait money and money straps from the bank, and currency totaling $9,308. The police also found latex gloves (matching gloves a teller described on the robbers) in the car parked in the garage. The three men, Joseph Lewis, Dawan Warren, and Dontrell Moore, were indicted for bank robbery (count I) and using a firearm during a robbery (count II) and tried separately. At his trial, Moore was convicted of both counts.

He appeals, arguing that the evidence was insufficient to convict him on either count.

Count I

"A defendant faces a nearly insurmountable hurdle in challenging the sufficiency of the evidence to sustain a conviction." United States v. Woods, 556 F.3d 616, 621 (7th Cir.2009) (quotations and citation omitted). Moore must convince us that even "after viewing the evidence in the light most favorable to the prosecution, no rational trier of fact could have found him guilty beyond a reasonable doubt." Id. "[W]e will overturn a conviction based on insufficient evidence only if the record is devoid of evidence from which a reasonable jury could find guilt beyond a reasonable doubt." United States v. Farris, 532 F.3d 615, 618 (7th Cir.2008) (citation omitted).

Moore's appeal requires us to articulate the somewhat difficult-to-describe distinction between our role, on review, to correct errors in the trial process and the jury's role, at trial, to act as the final arbiters of the facts of any given case. Our deference to the jury's role is expressed most plainly in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979):

[T]he critical inquiry on review of the sufficiency of the evidence to support a criminal conviction must be not simply to determine whether the jury was properly instructed, but to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt. But this inquiry does not require a court to ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt. Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

Id. at 318-19, 99 S.Ct. 2781 (1979) (quotations and citations omitted) (emphasis in the original).

In other words, our task is not to determine whether or not we think Moore was actually guilty of the bank robbery; we must only ask whether a rational jury could have believed he was, and believed so beyond a reasonable doubt. A verdict may be rational even if it relies solely on circumstantial evidence. United States v. Robinson, 177 F.3d 643, 647 (7th Cir.1999). The question we must answer is whether "each link in the chain of inferences" the jury constructed is "sufficiently strong to avoid a lapse into speculation." United States v. Jones, 371 F.3d 363, 366 (7th Cir.2004) (quoting United States v. Peters, 277 F.3d 963, 967 (7th Cir.2002)). Complicating matters is that in circumstantial cases "we face head-on the disturbing truth that guilty verdicts rest on judgments about probabilities and those judgments are usually intuitive rather than scientific." Stewart v. Coalter, 48 F.3d 610, 614 (1st Cir.1995).

The task for this jury was to determine whether Dontrell Moore was the man identified by the government as Robber # 2— the masked man who was photographed holding a bag as bank employees filled it with money from the bank's vault. The government asked the jury to infer that because law enforcement had arrived at the Darby Drive address within ten minutes of the robbery and found items in the house connected with the robbery along with three men who matched the descriptions given by the bank's employees, the three men robbed the bank. And because of the three, Dontrell Moore resembled most closely Robber #2, the government contends that there was sufficient evidence for the jury to convict Moore. Furthermore, the government points out that the identification of the other two people in the house, Warren and Lewis, is solid—Lewis, because of his unusually heavy build, and Warren, because the police took $20 of bait money off him when they booked him into the Allen County Jail (both of these facts were presented to the jury unchallenged).

But we must deal with Moore. His theory of the case is that his description does not really match up with Robber # 2's description and that because of the ill fit, the government cannot put Moore in the bank. And, if the government cannot put Moore in the bank, all the government can prove is his presence in the house where the other robbers were caught. "Mere presence," he tells us, is not enough to tag him with a bank robbery conviction. Furthermore, a third of the money from the robbery is missing.² This, he argues, supports his theory that even though the other two guys in the house robbed the bank, they did it without him.

The evidence from the bank employees and bank security system is about what you'd expect from a frantic event like a bank robbery. The terrified witnesses often had their eyes closed or avoided directly looking at the robbers; the robbers were masked and generally appear almost as blurs on the stills captured from the bank security feed. It is undisputed that three African-American men robbed the bank; it is also undisputed that at least one of the men was shorter and very heavy, a description that matches Joseph Lewis, the cousin of the Darby Drive homeowner (Joseph Lewis is apparently 5'7"-5'8" tall and weighs 280 pounds). Robber # 1, Dawan Warren, was identified as wearing a sweatshirt or flannel shirt over a jersey with a Number 7 on it, and this matches up to the jersey found in the attic at Darby Drive.³

But Robber # 2, who the jury found to be Dontrell Moore, was not so clearly described. Evidence before the jury included descriptions of Robber #2 that estimated his height as anywhere from 5'7" to 6'1". Dontrell Moore is 6'5". Robber #2 was also described as being slender (like Moore) and wearing a ski mask slightly askew so that one of the bank employees could see facial hair (which Moore wore). We can also see from the bank surveillance photos that he appeared to be wearing bluish-green pants and white tennis shoes.⁴ The bank photos also seem to confirm the witnesses' description of his attire as being "layered" (perhaps because he was wearing multiple sets of clothing—and remember, a variety of unaccounted-for clothing was found in the Darby Drive home). One employee testified that she saw someone leaving the bank and that he had long hair possibly in braids or cornrows. Dontrell Moore wore his hair in braided cornrows that, according to his mug shot from the day of the robbery, would possibly hang below the base of a ski mask (although from the testimony it's unclear whether the man the employee saw was wearing a ski mask; neither the defendant nor the government clarified).

Moore points to other evidence, or the lack thereof, to magnify the uncertainty of the identification.⁵ For one thing, the missing money led to a second search of the Darby Drive...