United States v. Evans, 110618 FED8, 17-2216

Docket Nº:17-2216
Opinion Judge:STRAS, Circuit Judge.
Party Name:United States of America Plaintiff - Appellee v. Malcolm Roy Evans Defendant-Appellant
Judge Panel:Before BENTON, KELLY, and STRAS, Circuit Judges. KELLY, Circuit Judge, concurring in part and dissenting in part.
Case Date:November 06, 2018
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

United States of America Plaintiff - Appellee


Malcolm Roy Evans Defendant-Appellant

No. 17-2216

United States Court of Appeals, Eighth Circuit

November 6, 2018

Submitted: May 16, 2018

Appeal from United States District Court for the District of Minnesota - St. Paul

Before BENTON, KELLY, and STRAS, Circuit Judges.

STRAS, Circuit Judge.

A jury found Malcolm Roy Evans guilty of four offenses arising out of a bank robbery. We affirm his convictions and sentence.


A man armed with a sawed-off shotgun robbed a Wells Fargo branch in Moorhead, Minnesota, and absconded with approximately $10, 000. As he left the bank, he jumped into the back of a van that he found parked near the bank's front entrance. The driver escaped and took her keys with her. The robber then fled on foot. Soon thereafter, he carjacked someone else, who drove him at gunpoint to the West Acres Mall in Fargo, North Dakota, right across the border from Moorhead. Once there, the robber forced the driver out of the car and sped off. The police found the car a short distance from the mall.

Using security footage, the police identified Evans as the perpetrator. The day after the robbery, they arrested him in Fargo as he left a Motel 6, where he was renting two rooms. The police then obtained a warrant to search the rooms and found over $2, 000 in cash, a sawed-off shotgun, and items of clothing matching those the bank robber had worn.

The United States charged Evans with armed bank robbery, attempted carjacking, carjacking, forcing a person to accompany him while attempting to avoid apprehension, and kidnapping. 18 U.S.C. §§ 1201(e), 2113(a), (d)-(e), 2119(1). The kidnapping charge was dismissed before trial. A jury found him guilty of the remaining four counts, and the district court1 sentenced him to 360 months in prison. Evans raises five arguments on appeal, which we address in the order they arose.


Evans, in the first of his five arguments, challenges the sufficiency of the affidavit underlying the search warrant, which he believes lacked probable cause. The district court denied Evans's motion to suppress the evidence found in the search of his motel rooms. "In reviewing the denial of [a] motion to suppress, we review the district court's . . . legal conclusions de novo." United States v. Ahumada, 858 F.3d 1138, 1139 (8th Cir. 2017). "Probable cause exists[] if under the totality of the circumstances, a showing of facts can be made sufficient to create a fair probability that evidence of a crime will be found in the place to be searched." United States v. Wallace, 550 F.3d 729, 732 (8th Cir. 2008) (per curiam) (internal quotation marks and citation omitted).

Evans argues that an affidavit from a detective who investigated the bank robbery, which the police submitted as part of the search-warrant application, did not adequately connect him to the crime. See United States v. Salter, 358 F.3d 1080, 1084 (8th Cir. 2004). In his view, the bank security footage relied upon by the detective in investigating the robbery was insufficient to establish probable cause, and the other evidence was too inconclusive to establish his identity as the bank robber. We disagree.

The affidavit contained a lot more than just conjecture about the identity of the bank robber. It explained how the detective conducted the investigation, including his examination of video footage from a local bus, which depicted a man whose appearance was "consistent with" the bank robber. He then tracked the man's movements and discovered that the timelines of the bus passenger and the bank robber matched. The bus passenger arrived at the bank shortly before the robbery, and the same man later boarded a bus where the robber had abandoned the carjacking victim. At least three people who knew Evans identified him from the bus footage. Two of those people also said Evans owned a sawed-off shotgun, which was the weapon used to commit the crimes. Because the affidavit showed that Evans had the means and opportunity to commit the crimes, it established a fair probability that he was the bank robber.

Evans also argues that even if there was reason to suspect he was the robber, the affidavit did not establish that the police would find evidence in his motel rooms. See United States v. Tellez, 217 F.3d 547, 550 (8th Cir. 2000). His argument is unpersuasive. The bus footage showed a man identified as Evans, who had a backpack, taking the bus from the West Acres Mall to a stop near the Motel 6. Evans then boarded another bus a short time later, this time without the backpack. The police knew Evans had two rooms at the Motel 6, so they could reasonably infer that Evans went from the scene of the crime to the motel to hide his shotgun and the stolen money. The police arrested Evans the next day as he was leaving the motel, suggesting that both the weapon and the loot might still be inside. The affidavit therefore established a "fair probability" that the police would find evidence from the bank robbery in one or both of his motel rooms. Id. at 549.


Evans's second challenge focuses on the numerous letters he sent to the district court, which he now characterizes as requests for new counsel. He says the district court should have granted him a new attorney, even though he never actually asked for one.

Although their content varied, Evans's letters primarily complained about his attorney's failure to share evidence with him. Some letters also focused on his attorney's decision not to pursue certain defense theories. At one point, he asked the court to direct his legal team to "get on the ball." The district court did not directly respond to any of Evans's letters.

At a pretrial hearing, however, the court inquired about the letters. Evans responded: I've been wanting to do a speedy trial, but those issues are still those issues. I have still, in my opinion, not seen all of the evidence in my case. . . . I want to go on the record with that and let you all know that, and at the same time I will still proceed to trial on my case.

The court arranged for him to stay in the courtroom after the hearing and examine the government's exhibit book. But the court took no further action, and the case proceeded to trial.

On appeal, Evans argues that the district court should have treated his letters as something they were not: motions for new counsel. He says the court should have read between the lines and granted him relief, even though he did not use magic words indicating that he wanted a new attorney.

Because Evans never actually requested a new attorney or objected to the court's failure to give...

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