U.S. v. Warren

• Decision Date: 26 January 2010
• Docket Number: No. 09-1228.,09-1228.
• Citation: 593 F.3d 540
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Dawan A. WARREN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

593 F.3d 540

UNITED STATES of America, Plaintiff-Appellee, v. Dawan A. WARREN, Defendant-Appellant.

No. 09-1228.

United States Court of Appeals, Seventh Circuit.

Argued October 8, 2009.

Decided January 26, 2010.

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

Adam B. Goodman, Attorney, Goodman Law Offices LLC, Jessica Tovrov, Attorney (argued), Tovrov Law Offices, LLC, Chicago, IL, for Defendant-Appellant.

Before EASTERBROOK, Chief Judge, MANION and TINDER, Circuit Judges.

TINDER, Circuit Judge.

Dawan A. Warren was charged with bank robbery and using a firearm during a robbery. The jury in his first trial was unable to reach a verdict. He was tried again before a second jury and was convicted as charged. Warren appeals, contending that the second trial violated his Fifth Amendment right not to be put to double jeopardy and that the evidence was insufficient to sustain his conviction. We affirm.

I. Background

In the afternoon on January 23, 2007, three men robbed a Tower Bank branch in Fort Wayne, Indiana. (This crime will be familiar to avid readers of the opinions of this court. We have already affirmed the convictions of two of the robbers, see United States v. Moore, 572 F.3d 334 (7th Cir.2009), and United States v. Lewis, 567 F.3d 322 (7th Cir.2009).) Detective Sergeant Craig Robison, a member of the Northeast Indiana Federal Bank Robbery Task Force, received a text message at 1:49 P.M., notifying him that a GPS tracking device had been activated. This meant that the device had been removed from the bank drawer in which it was located (the bank's bait money was embedded with the GPS device), signaling that the bank had been robbed. Detective Robison used his hand-held tracking device and headed to the area from where the device was transmitting—the 4200 block of Darby Drive. It took him only ten minutes to get there and when he arrived, the area was already flooded with other law enforcement officers. The GPS device indicated that it was within 49 feet of 4229 Darby Drive when it stopped transmitting.

Based on the GPS information and the observation of fresh tire tracks in the snow leading from the road to the garage at 4217 Darby Drive, law enforcement officers focused their attention on the house at that address. When the homeowner Kenyatta Lewis and his wife arrived, the officers obtained his consent to search the house. The search led to the discovery of three African-American men inside: Joseph Lewis, Kenyatta's cousin; Dontrell Moore; and Dawan Warren. While officers were in the garage, Joseph Lewis opened the door from the house into the garage and was taken into custody. Then the officers entered the house and found Moore on a toilet in an upstairs bathroom. The officers discovered Warren, fully clothed, lying on a bed in an upstairs bedroom. He had his back toward the door and had a sheet or blanket on him. With his shotgun pointed at Warren, an officer ordered Warren to get up out of the bed. Warren did so. The officer testified that Warren appeared calm at the time.

Joseph Lewis, Moore, and Warren fit the general physical descriptions of the three bank robbers (the robbers had worn ski masks) given by the bank employee witnesses. Robber # 1 was described as a black male, 5' 6" or 5' 8", and of medium build. He wore a white shirt with the number 7 on it (a Michael Vick jersey) under an opened sweatshirt or flannel shirt. He had on latex gloves and carried a gun. Robber # 2 was a slender, black male with facial hair (his mask was off to the side). He was taller than Robber # 1—6' or 6' 1"—and wore greenish, bluish windbreaker-type pants, brand new white tennis shoes, latex gloves and carried a light-colored canvas bag. Robber # 3 was much larger, heavier, and stockier than the other two robbers. One of the robbers had long hair, described as possibly long braids or dread locks. Lewis was a heavy set, wide, African-American man and the shortest of the three suspects. Moore was described as "extremely tall and thin, six feet tall," was the tallest of the three men, and had some facial hair. Warren was much thinner than Lewis and shorter than Moore. Further details about the robbery are contained in the Moore, 572 F.3d 334, and Lewis, 567 F.3d 322, decisions.

At Warren's trial, Kenyatta Lewis testified that he and his wife left early for work on January 23, 2007, and that no one had permission to be in his house that day. He testified that he did not know Warren and that Warren in particular had no permission to be in his house. Kenyatta testified that he did not recall any damage to the interior garage door leading into the house; police officers had found that the door had been damaged and splintered (as if it had been kicked open). Kenyatta identified the silver Buick LeSabre parked inside his garage as Joseph Lewis's wife's car. Kenyatta said that he did not store any clothing or other items in the attic in his house.

On the day of the robbery, the police collected evidence from Kenyatta's house. In the attic, the police found several articles of clothing of various sizes, including a pair of blue nylon-type, wind pants with a white stripe down the side and a few sweatshirts. A black plastic trash bag, a handgun, and money, later identified as bait money from the robbery, were taken from the attic and other items were collected from the bedroom.

As part of their investigation, officers searched two vehicles: a brown Buick Century which was found approximately one mile from the bank and identified as the getaway car, and the silver Buick LeSabre which was parked in Kenyatta's garage at a slight angle, suggesting that the driver had pulled in quickly. The police found a clear vinyl glove on the front passenger floor area of the brown Buick Century. They found a pair of vinyl clear gloves on the rear seat of the silver Buick (Joseph Lewis's wife's car). Inside that vehicle's trunk, officers found a brown bag containing a box of gloves and a box of vinyl examination gloves. DNA testing of a sample obtained from one of the gloves from the back seat was consistent with Warren's DNA profile.

Upon Warren's arrival at the Allen County Jail on January 23, a $20 bill was taken from him along with other property. A $20 bait bill was missing from the bait money taken during the robbery. The police compared the serial number on the $20 bill taken from Warren with the serial number of the missing bait bill. They matched!

Warren was charged in an indictment with one count of bank robbery by force, violence, and intimidation in violation of 18 U.S.C. § 2113(a) and (d) and 18 U.S.C. § 2 and one count of knowingly using and carrying a firearm during and in relation to the bank robbery in violation of 18 U.S.C. § 924(c) and 18 U.S.C. § 2. Warren's first jury trial began on June 3, 2008 and continued for several days. On June 12, 2008, after deliberating for over six hours, the jury advised the court that it believed it was hung. The court proposed two alternatives for handling the situation and sought input from the parties' counsel. The court suggested asking the jury foreman whether, given the lateness of the hour (it was 7:30 P.M.), adjourning the proceedings for the evening and resuming deliberations in the morning might be beneficial. If the foreman were to advise the court that the jury was hopelessly deadlocked and that adjourning for the night would not help, then that would be accepted and the court would take up any motions that were made.

The parties agreed with the court's proposal and the jury was brought into the courtroom. The court did as it had proposed, and the foreman advised that he did not think further deliberations would change any juror's view. The court had the foreman confer with the jury as a whole. After a short recess, the foreman stated that the jury did not feel that returning the next day to resume deliberations would be of any benefit because everyone had his or her opinion and the opinions weren't going to change. The court asked if there was anything that it could do to help facilitate further deliberations, and the foreman indicated that there was nothing that could be done. After that, the court asked the parties if they wanted the court to make any further inquiry of the jury, and the parties indicated that there was none. Thereafter, the court advised the jury: "I'm going to excuse you from further service in conjunction with this case. I ... appreciate the efforts that you have put forward over the last four days.... And I note your very sincere efforts to try to reach a verdict in this case.... I'm going to release you. Your work with this case is now done."

After the jury left the courtroom, the court asked counsel, "[A]re there any motions to present at this time in light of this development?," and Warren's attorney moved "for a mistrial ... because the jury has represented ... that it is hopelessly deadlocked." The judge gave each side an opportunity to comment on the propriety of an order for mistrial, to state whether they consented or objected and to suggest any alternative. The government indicated that there appeared to be no reason not to consent, but wanted to ensure that its right to retry the case was preserved. The court inquired of defense counsel if there was any issue with the government's right to retry the case; counsel indicated there was none. Then the judge said, "What I would be inclined to do is ... grant the defendant's request for a mistrial based on the record that we have before us regarding this jury being deadlocked." The judge proposed a telephone conference to reschedule the trial; a conference was scheduled for the following week.

Warren's next jury trial began on October 1, 2008. This second jury convicted him of both counts. The district court sentenced Warren to 327 months' imprisonment on Count 1 and 84 months on...