United States v. Wilbern

• Decision Date: 18 October 2022
• Docket Number: 20-3494-cr
• Parties: UNITED STATES OF AMERICA, Appellee, v. RICHARD LEON WILBERN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

UNITED STATES OF AMERICA, Appellee, v. RICHARD LEON WILBERN, Defendant-Appellant.

No. 20-3494-cr

United States Court of Appeals, Second Circuit

October 18, 2022

UNPUBLISHED OPINION

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER"). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 18^th day of October, two thousand twenty-two.

Appeal from a judgment of the United States District Court for the Western District of New York (Charles J. Siragusa, Judge).

For Appellee: KATHERINE A. GREGORY, Assistant United States Attorney, for Trini E. Ross, United States Attorney for the Western District of New York, Buffalo, NY

For Defendant-Appellant: SARAH BAUMGARTEL, Federal Defenders of New York, Inc., Appeals Bureau, New York, NY

Present: ROSEMARY S. POOLER, RAYMOND J. LOHIER, JR., WILLIAM J. NARDINI, Circuit Judges.

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

Defendant-Appellant Richard Leon Wilbern appeals from a judgment of conviction entered against him on September 22, 2020, for a robbery resulting in death at a Xerox Federal Credit Union in violation of 18 U.S.C. §§ 2113(a) and 2113(e).

On appeal, Wilbern argues that the district court erred by: (1) admitting into evidence low copy number ("LCN") DNA profiles; (2) preventing Wilbern from confronting every analyst involved in generating the LCN DNA profiles; (3) prohibiting Wilbern from communicating with his counsel overnight during trial; (4) refusing to investigate post-trial evidence of allegedly racist remarks made by an alternate juror to another juror; and (5) admitting witness identifications elicited under suggestive circumstances. We assume the parties' familiarity with the case.

I. Admission of LCN DNA Evidence

Wilbern first argues that the district court erred by denying his motion to exclude LCN DNA evidence under Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993). We disagree.

Federal Rule of Evidence 702 allows expert witness testimony if:

(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.

Fed. R. Evid. 702. The proponent of the expert testimony bears "the burden of establishing by a preponderance of the evidence that the admissibility requirements of Rule 702 are satisfied." United States v. Jones, 965 F.3d 149, 161 (2d Cir. 2020) (internal quotation marks omitted). The determination of whether testimony is reliable and therefore admissible as an expert opinion is multi-factored and flexible. Daubert, 509 U.S. at 592-94. Under Daubert, there are five non- exclusive factors that a court may consider in determining the reliability of expert testimony:

(1) whether a theory or technique has been or can be tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) the technique's known or potential rate of error; (4) the existence and maintenance of standards controlling the technique's operation[;] and (5) whether the technique is generally accepted in the relevant scientific community[.]

Jones, 965 F.3d at 159 (internal quotation marks omitted) (quoting Daubert, 509 U.S. at 593-94). A trial judge conducting this flexible inquiry has "considerable leeway" in determining whether to admit expert testimony. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999).

Accordingly, a district court's decision to admit or exclude expert scientific testimony is reviewed for abuse of discretion and will be overturned only where the decision was "manifestly erroneous." Jones, 965 F.3d at 161-62 (internal quotation marks omitted). A decision to admit expert testimony can be manifestly erroneous if, for example, the testimony is:

based on data, a methodology, or studies that are simply inadequate to support the conclusions reached, or if the opinion is speculative or conjectural, . . . or if it is based on assumptions that are so unrealistic and contradictory as to suggest bad faith or to be in essence an apples and oranges comparison.

Id. at 162 (internal quotation marks and citations omitted). "But other contentions that the assumptions are unfounded go to the weight, not the admissibility, of the testimony." Id. (internal quotation marks omitted).

After reviewing the trial record, we conclude that the district court did not abuse its discretion in admitting the LCN DNA evidence, and we reject each of Wilbern's arguments to the contrary. First, it was not manifestly erroneous for the district court to conclude that LCN DNA testing, as performed by New York City's Office of the Chief Medical Examiner ("OCME"), was generally accepted in the relevant scientific community. The DNA Subcommittee of the New York State Forensic Science Committee had accepted the method, and the district court, as additional support for its conclusion, reviewed expert testimony and evidence from other cases that indicated general acceptance.^1[] Second, the district court did not abandon its role as an independent gatekeeper. In fact, the district court looked beyond the endorsement of New York's DNA Subcommittee; specifically disclaimed any "rote reliance on prior court decisions," Special App'x 9; and listed five pages of exhibits it had considered as part of its examination of OCME's method, id. at 9-13. Finally, Wilbern's argument that the district court disregarded evidence of contamination and irregularities in the DNA profiles goes to the weight of the evidence, not its admissibility.

II. Confrontation Clause

Wilbern next argues that the district court violated his Sixth Amendment right to confront the witnesses against him by admitting LCN DNA profiles without the testimony of every analyst personally involved in the DNA testing and editing process. We conclude that any hypothetical violation of Wilbern's right to confrontation would have been harmless in light of the other overwhelming evidence that the government presented at trial to establish Wilbern's guilt.

"Alleged violations of the Confrontation Clause are reviewed de novo, subject to harmless error analysis." United States v. Vitale, 459 F.3d 190, 195 (2d Cir. 2006). Such a violation "may be held to have been harmless if the government can show beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." United States v. Casamento, 887 F.2d 1141, 1179 (2d Cir. 1989) (internal quotation marks omitted). The overall strength of the government's case is "probably the single most critical factor in determining whether error was harmless," Wray v. Johnson, 202 F.3d 515, 526 (2d Cir. 2000), but we also consider "the prosecutor's conduct with respect to the improperly admitted evidence"; "the importance of the wrongly admitted testimony"; and "whether such evidence was cumulative of other properly admitted evidence," United States v. Groysman, 766 F.3d 147, 155 (2d Cir. 2014) (internal quotation marks omitted). We have found violations of the Confrontation Clause to be harmless error where "[t]he evidence of . . . guilt was overwhelming." United States v. McClain, 377 F.3d 219, 222 (2d Cir. 2004).

Here, the government has met its burden of proving beyond a reasonable doubt that any error would not have contributed to the guilty verdict. Without the DNA evidence, the government's evidence at trial still included the identification testimony of Wilbern's former coworker, ex-girlfriends, and a close friend, as well as circumstantial evidence of Wilbern's motive and links to various objects connected with the robbery. Specifically, Wilbern's former co-worker testified that he recognized Wilbern from surveillance photos shown on television in the wake of the robbery and that an FBI jacket worn by the person in the surveillance photos resembled an FBI jacket Wilbern had worn to a Halloween party in the years leading up to the robbery. The maintenance contractor who cleaned out Wilbern's property following a foreclosure proceeding years later discovered at the property an FBI jacket, which the contractor testified "look[ed] exactly the same" as the FBI jacket shown in the surveillance photos. App'x 2207. Two of Wilbern's exgirlfriends separately identified Wilbern as the person in the surveillance photos. And Wilbern's close friend testified that the person in the one of the surveillance photos resembled Wilbern. The same close friend also testified that, in the years leading up to the robbery, he and Wilbern traveled to Japan together at least three or four times a year. During these trips, they visited souvenir stores that sold law enforcement memorabilia, including badges and jackets branded with the names of various federal agencies. Moreover, an umbrella that the robber left behind at the scene had a Japanese sticker on it that translated to a Japanese name and a Shinto shrine located in Japan.

As additional...