United States v. Pendergrass, 19-13681

• Decision Date: 22 April 2021
• Docket Number: No. 19-13681,19-13681
• Citation: 995 F.3d 858
• Parties: UNITED STATES of America, Plaintiff - Appellee, v. Dontiez PENDERGRASS, Defendant - Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

995 F.3d 858

UNITED STATES of America, Plaintiff - Appellee,

v.Dontiez PENDERGRASS, Defendant - Appellant.

No. 19-13681

United States Court of Appeals, Eleventh Circuit.

April 22, 2021

Jennifer Keen, Jane Elizabeth McBath, Erin Sanders, U.S. Attorney Service, Northern District of Georgia, U.S. Attorney's Office, Atlanta, GA, for Plaintiff-Appellee.

Tanya F. Miller, DuBose Miller LLC, Atlanta, GA, Leigh Ann Webster, Strickland Webster, LLC, Atlanta, GA, for Defendant-Appellant.

Before ROSENBAUM, LUCK, and ANDERSON, Circuit Judges.

ROSENBAUM, Circuit Judge:

We vacate our opinion dated March 24, 2021, 991 F.3d 1327 (Mar. 24, 2021), in this case and replace it with this one. Concealing one's identity can literally be an art in itself. Banksy, an English street artist known for his distinctive stenciling graffiti found along buildings in London, New Orleans, and San Francisco,¹ has long hidden his true identity and name. But new Banksy works can often be identified by comparing them with patterns in his prior works: his signature techniques,² his choice of medium—inconspicuous walls and a bag of spray paint cans, and his unique aesthetic—black-and-white stenciled images often accompanied by a vibrant pop of color.³ And perhaps the biggest clues are his satirical, thought-provoking messages underlying each piece.

Identifying patterns and whittling down a list of suspects are not just for Banksy sleuths. Law enforcement used similar strategies to track down and identify a suspect in a string of five robberies targeting small, mom-and-pop businesses in the Atlanta suburb of Gwinnett County. Distinctive hallmarks—like the robber's left-handed use of a black-and-silver pistol, bullets or their casings cycled through the same .40-caliber pistol in three of the five robberies, and clothing and accessories with unique designs—that made appearances in the robberies led investigators to Dontiez Pendergrass. Pendergrass was indicted on five counts of armed robbery and, relatedly, carrying a firearm in furtherance of the charged robberies. Following a five-day trial, the jury convicted him on all charges.

Pendergrass now challenges his convictions on several grounds. After careful consideration and with the benefit of oral argument, we affirm.

I. Facts

We take the facts from the evidence presented at Pendergrass's trial. In particular, we review the relevant evidence concerning the robberies of each of the five businesses: the China Star restaurant, Polo's Taqueria, Discount Grocery, Bonita Coin Laundry, and the Best Wings restaurant. Then we summarize the relevant evidence law enforcement recovered when it conducted a search warrant on Pendergrass's residence after the robberies had occurred.

A. China Star Robbery

On the evening of November 19, 2016, the China Star Restaurant was robbed. The owner was in the back of the restaurant preparing for closing. An armed man with his face covered from the nose down approached, pushed one of the restaurant employees inside, and demanded money. As the robber used his left hand to aim a black-and-silver pistol at the owner, the owner handed over cash.

Restaurant surveillance captured the incident on video, and the jury viewed that footage during the trial. The video revealed that the robber wore a red hooded shirt under a long-sleeved black shirt with a distinctive white pattern on it.

B. Polo's Taqueria Robbery

About a month after the China Star robbery, on December 24, 2016, three armed men robbed Polo's Taqueria shortly after it closed. Israel Morales, a Taqueria employee, sat outside the restaurant after his shift ended (at around midnight), when three men with faces covered from the nose down and covered bodies approached him. Two of the three men carried pistols, and the third had a long gun. The long gun was a chrome-barreled rifle with a scope on it. One of the assailants shot out the glass in the front door of the restaurant to gain entry. Then robbers forced Morales inside the restaurant and demanded he open the safe located in the office, but Morales told them he did not know how.

The owner of the restaurant, Gerardo Muro, was also present during the robbery and saw the three men approach as Morales sat out front. As this occurred, Muro ran to the back of the restaurant and heard a gunshot, so he called 911.

Surveillance cameras again recorded the robbery, and the jury viewed the resulting video and still photos from them. One of the robbers was a tall man who carried a black-and-silver pistol in his left hand. He wore gloves, along with a red shirt underneath a long-sleeved black shirt with a distinctive white pattern. And over his clothing, he wore a single-strap cross-body backpack.

Besides this, the government presented the testimony of FBI Special Agent Mathew Carman, who discussed phone-related data he had collected. Carman testified that at 10:38 p.m. and 12:35 p.m. on the night of the robbery, a phone number ending in 1011, which was registered to Pendergrass, "pinged" off a cell tower that covered the area where Polo's Taqueria was located. He also attested to Google geo-location data that revealed Pendergrass's phone was near Polo's Taqueria about an hour before the robbery.

Ballistics expert Zachary Weitzel also testified. He noted the police had recovered an intact bullet cartridge from inside the restaurant near the front windows and identified it as ammunition for a Smith and Wesson .40-caliber gun. He also testified, based on his review of the evidence, that the ammunition had been cycled through the same firearm as the one used at the Discount Grocery and Best Wings robberies we describe below.⁴

C. Discount Grocery Robbery

One week after the Polo's Taqueria robbery, on the evening of January 1, 2017, Discount Grocery was robbed. Discount Grocery is in the same shopping plaza as the China Star restaurant. Owner Sunil Joseph was closing the store between 9:00 and 9:30 p.m. and as he stood behind the counter, three men rushed at him. Their faces were covered from the nose down, and all three were armed with guns. One of the robbers grabbed Joseph and demanded he get on his knees. When Joseph refused, the robber pistol whipped him to force him to comply. While Joseph was on his knees, he reached for a gun located near the register. Another taller robber, who was wearing white gloves and was armed with a black-and-silver pistol in his left hand, answered by shooting Joseph three times. As Joseph bled, he called 911, while the robbers ran.

Joseph provided surveillance video to the police, and the government presented this video and still photos derived from it to the jury during the trial. The surveillance video showed that Joseph's assailant was a man who wore a single-strap cross-body backpack. Joseph further described the man who shot him as tall with "dreads" and said the man wore a red headwrap.

During their investigation of the scene, officers found droplets of blood outside the counter and several shell casings from when Joseph was shot. Forensic DNA expert Jeremy Fletcher testified that the blood found on the floor at Discount Grocery matched Pendergrass's blood. In fact, he attested that the DNA on the floor of the grocery store was 690 septillion times more likely to be Pendergrass's than an unknown person's.

As for the three shell casings recovered from the floor of the grocery store, as we have mentioned, Weitzel (the ballistics expert) confirmed that they were cycled through the same Smith and Wesson .40-caliber gun used in the Polo's Taqueria robbery and in the Best Wings robbery we describe below. And similar to the Polo's Taqueria robbery, Agent Carman testified that, at 7:20 p.m. and 8:41 p.m. on the night of the robbery, Pendergrass's cell phone "pinged" off a cell tower that covered the area where Discount Grocery was located. Carman also presented Google geo-location data showing that Pendergrass's phone was near Discount Grocery about twenty minutes before the robbery and shooting.

D. Bonita Coin Laundry Robbery

Four days after the Discount Grocery robbery, on January 4, 2017, the Bonita Coin Laundry was robbed. An employee of the laundry, Sonia Prudencio, was there when it happened, as were several patrons and some young children. According to Prudencio, the robbery occurred at around 9:00 p.m., when two armed men who were covered up rushed into the laundromat and grabbed her fourteen-year-old daughter. After commanding the other customers to get on the floor, the men took Prudencio's daughter to the safe and stole cash.

Surveillance video the store manager provided and the government played for the jury showed a taller robber. He was wearing a red hooded shirt, white gloves, and a covering on his face. In his left hand, he held a black-and-silver pistol.

Other witnesses who were threatened during the robbery also testified. The witnesses all said that the robbers made everyone go to the restroom, where the robbers blocked them in with a pool table so the robbers could escape.

E. Best Wings Robbery

Eleven days after the Discount Laundry robbery, on January 15, 2017, Best Wings was robbed. The robbery occurred between 3:00 and 4:00 a.m., after Best Wings had closed.

As Saurilius Kyzelius, a Best Wings patron, and Brittany Anderson, a Best Wings employee, left the restaurant and approached Anderson's car, two armed robbers accosted them, one with a gun in his left hand. The robbers insisted that the two return to the restaurant and demanded the key to the safe.

Another customer heard a commotion and went outside to see what was happening. He struggled with the taller robber, who wore a red shirt and white gloves, and carried a pistol in his left hand. During this struggle, the taller robber fired a shot towards Anderson's car, where Anderson and Kyzelius were attempting to evade the other robber. The shot barely missed Kyzelius. Then the robbers forced everyone back inside the restaurant and forced them to get on their knees. The robbers again demanded that...