*

The Honorable Robert H. Bell, Chief United States District Judge for

the Western District of Michigan, sitting by designation.

1

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2004 FED App. 0136P (6th Cir.)

File Name: 04a0136p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

NOAH BEVERLY (00-3617);

JOHNNY P. CROCKETT

(00-3618); DOUGLAS A.

TURNS (00-3741),

Defendants-Appellants.

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Nos. 00-3617/

00-3618/3741

Appeal from the United States District Court

for the Southern District of Ohio at Columbus

No. 99-00104—James L. Graham, Chief District Judge.

Argued: February 4, 2003

Decided and Filed: May 12, 2004 

Before: BOGGS, Chief Judge; NORRIS, Circuit Judge;

and BELL, Chief District Judge.*

2 United States v.

Beverly, et al.

Nos. 00-3617/3618/3741

_________________

COUNSEL

ARGUED: Richard A. Cline, MITCHELL, ALLEN,

CATALANO & BODA, Columbus, Ohio, Kevin P. Durkin,

TAYLOR & DURKIN, Columbus, Ohio, Gary W. Deeds,

Columbus, Ohio, for Appellants. J. Michael Marous,

ASSISTANT UNITED STATES ATTORNEY, Columbus,

Ohio, for Appellee. ON BRIEF: Richard A. Cline,

MITCHELL, ALLEN, CATALANO & BODA, Columbus,

Ohio, Kevin P. Durkin, TAYLOR & DURKIN, Columbus,

Ohio, Gary W. Deeds, Columbus, Ohio, for Appellants.

J. Michael Marous, David J. Bosley, ASSISTANT UNITED

STATES ATTORNEY, Columbus, Ohio, for Appellee. 

_________________

OPINION

_________________

BOGGS, Chief Judge. Noah Beverly, Douglas A. Turns,

and Johnny P. Crockett were indicted for multiple crimes by

a federal grand jury, charging them with conspiracy to

commit armed bank robbery, in violation of 18 U.S.C. § 371,

committing various armed bank robberies, in violation of 18

U.S.C. § 2113(a) and (d), and possessing firearms during and

in relation to these crimes of violence, in violation of 18

U.S.C. § 924(c). After two evidentiary hearings, a jury trial

commenced in which all three defendants were tried together.

On February 8, 2000, the jury returned a verdict of guilty on

all counts against Beverly and Turns. Crockett was found

guilty of conspiracy to commit armed bank robbery, of

robbing Security National Bank, and the Park National Bank

in Hebron, Ohio, and of using a firearm in commission of

those crimes, but was found not guilty of robbing two other

banks with another defendant not involved in this appeal.
Nos. 00-3617/3618/3741 United States v.

Beverly, et al.

3

All three defendants have appealed this verdict. Beverly

appeals the introduction of mitochondrial DNA (mtDNA)

evidence against him at trial, arguing that the evidence was

not scientifically reliable and, even if reliable, its probative

value was outweighed by its prejudicial effect. In addition,

Beverly joins the other defendants in bringing a Batson

challenge, arguing that the district court committed clear error

when it granted the government’s peremptory challenge

against an African-American who could have been seated on

the jury panel. Turns appeals the district court’s decision to

join his trial with the other two defendants, and further argues

that the district court abused its discretion in denying his

Rule 14 motion to sever his trial. Turns also contends that the

district court abused its discretion in limiting his examination

of a government witness, that the district court erred in its

denial of his motion for acquittal, and that his sentence of

seventy-one and one half years, largely mandated by the

requirement of consecutive sentencing under 18 U.S.C.

§ 924(c)(1)(D)(ii), is cruel and unusual punishment in

violation of the Eighth Amendment. Crockett appeals his

conviction on the basis of prosecutorial misconduct and

argues that the district court erred in its denial of his motion

for acquittal. In addition, Crockett contends that the district

court abused its discretion in failing to excuse a potential

juror for cause, in admitting testimony regarding his wife’s

pretrial identification of him in a bank surveillance photo, in

admitting into evidence his failure to file income tax returns,

and in limiting his examination of a government witness’s

probation officer. For the reasons set forth below, we affirm

the defendants’ convictions.

I

This case is about a series of bank robberies that occurred

in Ohio between September 1994 and November 1995. Much

of what happened was described by two men who testified at

4 United States v.

Beverly, et al.

Nos. 00-3617/3618/3741

trial: Anthony Lavelle Rogers and his half-brother Melvin

Warren, Jr.. In each of the seven robberies, either Rogers,

Warren, or both, participated in the event and so testified to

what occurred. Neither Rogers nor Warren are defendants in

this case because they both entered into a plea agreement as

part of a guilty plea to armed bank robbery. 

Delaware County Bank and Trust 

According to Rogers’s testimony at trial, on September 26,

1994, Rogers and Turns stole a Chevrolet Blazer from a

trucking company and robbed the Delaware County Bank and

Trust in Ashley, Ohio on the following day. Turns waited

outside, feigning mechanical problems, while Rogers, having

borrowed Turns’s gun, went inside and robbed the bank.

Rogers carried a silver pistol provided by Turns. After the

robbery, the two drove to Columbus, Ohio where Turns’s

sister, Starla Turns, had a house. Rogers claimed he gave

Turns $5,000 of the more than $70,000 he took from the

vault.

Rogers was dating Starla and he was planning on leaving

for Disney World with her the next day, so that night Rogers

rented a hotel room near the Columbus airport. When Rogers

realized that it would unwise to attempt to take the gun on the

airplane, he spoke with Turns about what he should do with

it. Turns apparently suggested that Rogers leave it

underneath the bushes near the hotel, where Turns could later

recover it. Turns has a different version. According to the

testimony of FBI Agent Harry Trombitas, Turns told him that

he, Turns, had found the gun in his car after having lent the

vehicle to Rogers. Turns then informed Agent Trombitas

about the weapon, and stashed it under some bushes by this

same hotel while waiting for the FBI to come and pick it up.

In Florida, while visiting Disney World, Rogers and Starla
Nos. 00-3617/3618/3741 United States v.

Beverly, et al.

5

used various forms of false identification, which were

allegedly provided to them by Turns.

Within ten days of the robbery, Lisa Dennis, Turns’s

girlfriend, made two round-number cash deposits to her bank

account. The first deposit, made two days after the robbery,

was for $500, and a week later, a second deposit of $600 was

made. According to testimony presented at trial, neither

Turns nor his girlfriend had a source of income that would

explain these deposits. Turns’s entire income during this

period was apparently derived from unemployment benefits

and his girlfriend, Dennis, was only receiving general

assistance and funds from Aid to Dependant Children.

Eleven months later, Turns provided details of this robbery

to the FBI, but denied his own involvement. Turns placed the

amount stolen as between $70,000 and $80,000. The actual

amount stolen was $72,500. Turns implicated Rogers,

describing his disguise and noting that he had seen Rogers in

a white Chevrolet Blazer with Kentucky license plates.

Park National Bank in Kirkersville, Ohio

In December 1994, Rogers, his half-brother Melvin

Warren, and Turns drove Warren’s burgundy Cadillac to a

Meijer shopping center in Columbus, Ohio, where Rogers

stole a car. The theft was recorded by surveillance cameras.

Turns, Rogers, and Warren drove to Kirkersville, Ohio.

Rogers and Warren then took the stolen car and drove to the

bank, while Turns waited with Warren’s Cadillac at a nearby

freeway on-ramp. Again, Turns feigned mechanical problems

while Rogers and Warren robbed the Park National Bank,

with Rogers using a gun he had gotten from Turns. Warren

used a gun obtained from Beverly. After robbing the bank,

Rogers and Warren drove the stolen car to the freeway onramp where they shifted into the Cadillac with Turns. Warren,

6 United States v.

Beverly, et al.

Nos. 00-3617/3618/3741

directed by Turns, drove to Turns’s brother’s house, where

the three counted their take and divided it into thirds.

Several weeks after the robbery, Warren and Rogers were

stopped by the police and Rogers used Turns’s driver’s

license as identification. Though Rogers was released, a gun

was recovered from the car and Warren was arrested. The

ownership of the gun was traced back to Turns, who had

purchased the weapon on September 9, 1993. This gun was

allegedly provided to Rogers by Turns prior to the Park

National Bank robbery. 

Eight months after the December 30, 1994 robbery, Turns

stated to the FBI that he had been at the aforementioned

shopping center with the Meijer store that day with his

brother and had happened to see Warren and Rogers there.

Turns stated that Warren and Rogers told him details about

the robbery later in the day, including the fact that they had

taken approximately $35,000. The actual amount stolen was

$31,377.

National City Bank 

Another bank robbery occurred five months later, on

May 12, 1995, involving Warren, Beverly, and a third man

named Colby. Warren testified that while the three of them

were drinking at Beverly’s house they decided to rob a bank.

Warren, Beverly, and Colby parked at a nearby auto-parts

store and walked into the National City Bank on Lockbourne

Road in Columbus. Once in the bank, they began shouting

for everyone to put their hands up. Beverly carried a

revolver. The robbery netted $3,428. It was filmed by bank

surveillance cameras. Warren identified Beverly as one of the

robbers in the surveillance photographs shown at trial.
Nos. 00-3617/3618/3741 United States v.

Beverly, et al.

7

Security National Bank 

On May 18, 1995, Warren, Rogers, Beverly, and Crockett

robbed the Security National Bank in Springfield, Ohio. The

four met before the robbery at Beverly’s apartment, where

they prepared disguises, including masks and bandannas.

They then drove together to Springfield in Warren’s tan

Lincoln Town Car. Once in Springfield, the four drove to a

hospital, where Rogers stole a car to use as a getaway vehicle

in the robbery. They found an alley behind some buildings

across the street from the bank, where they parked the

Lincoln. Rogers, Warren, Beverly, and Crockett entered the

bank and Crockett, wearing a pair of pantyhose over his head,

jumped over the teller’s counter and ordered people to the

floor. After robbing the bank, the four used the stolen car to

get to the alley where the tan Lincoln was parked. They all

left their disguises in the stolen car, which was later recovered

by the police. The four escaped with $10,538.47.

During the robbery, bank surveillance cameras were

working and took several photographs. Both Warren and

Rogers were able to identify each other, as well as Beverly

and Crockett, in the photos. The government contends that

Beverly’s pose, disguise, choice of weapon, and use of his left

hand is almost identical in the May 18 and the May 12

robbery photos, and that Beverly’s revolver, which appears in

the pictures, had the same characteristics as the gun recovered

after the November 22, 1995 robbery of the Park National

Bank in Hebron, Ohio. (See page 9, infra). The photographs

also show a man, identified as Beverly, wearing a “Columbia”

hat with holes cut in it as a mask. This hat was later

recovered from the abandoned stolen car. It was a hair from

this hat that was sent to the lab for the mitochondrial DNA

test that was ultimately admitted into evidence at trial.

On July 24, 1995, two months after this robbery, Crockett

purchased a 1984 Cadillac for $2,500. Yet, Crockett did not

report any income for the year 1995. As part of the bank

8 United States v.

Beverly, et al.

Nos. 00-3617/3618/3741

robbery investigation, FBI Agent Trombitas interviewed

Crockett’s wife, who identified her husband in the

surveillance photo.

First National Bank 

On July 28, 1995, Rogers, Warren and Turns drove to

Zanesville in Turns’s BMW. Once in Zanesville, the three

drove to a grocery store where Rogers stole a Buick to use as

a get-away vehicle. Rogers and Warren took the stolen car to

the bank, while Turns drove to a nearby school, their prearranged meeting place, and waited. Rogers and Warren

entered the bank, both armed. After getting the money, they

returned to Turns’s car and drove back to Columbus with

$41,989. The get-away car was recovered by the police near

a school. As it turns out, that same car had been reported

stolen from the grocery store where the three had allegedly

stopped. In addition, a local resident spotted the BMW near

the school during the relevant time period. She identified the

make and model, which matched a car that Turns had

purchased on May 26, 1995 in Franklin County, Ohio for

$5,450.

On the day before the robbery, the balance of the bank

accounts of Lisa Dennis, Turns’s girlfriend, totaled $24.34.

However, her account later showed a deposit made three days

after the First National Bank robbery of exactly $1,000. Two

days after the First National Bank robbery, Turns and Dennis

met with a real-estate agent and put a $5,000 down payment

on a house. On August 2, 1995, Turns and Rogers purchased

a Porsche in Turns’s name with $5,847.23 in cash. Neither

Turns nor Dennis filed tax returns in 1994 or 1995.

In the summer of 1995, Turns and his brother went to a gun

show with Rogers. They purchased several weapons there.
Nos. 00-3617/3618/3741 United States v.

Beverly, et al.

9

Rogers testified to the fact it was their collective intention to

use these weapons in future robberies. 

Huntington National Bank 

Only six days after robbing the First National Bank, on

August 3, 1995, Rogers, Turns, and Warren robbed the

Huntington National Bank in Marysville, Ohio. Turns drove

them to Marysville in his BMW. Contrary to their usual

practice, they did not steal a car to use as a get-away vehicle,

but instead planned to steal a get-away car at the bank. Once

there, Turns dropped the other two off in an alley near the

bank and went to a pre-arranged place where they were to

meet after the robbery. Rogers and Warren robbed the bank,

stole a vehicle, and met Turns at the pre-arranged spot. They

abandoned the stolen vehicle and drove back to Columbus

with their take of $79,500.

After the Huntington National Bank robbery there were

more round-number deposits made to Lisa Dennis’s account.

Again, Turns described the robbery to the FBI in detail,

without mentioning his involvement.

Park National Bank in Hebron, Ohio

On November 22, 1995, in Hebron, Ohio, Crockett and

Warren robbed the Park National Bank. Crockett and Warren

both had guns when they entered the bank and both were

wearing disguises. Warren identified both himself and

Crockett in the bank surveillance video. After finding dye

packs in some of the money they had taken, Crockett began

throwing the dye packs at the bank employees, who were

lying on the floor. Crockett also fired a shot near the tellers.

Crockett and Warren stole $30,577 from the Park National

10 United States v.

Beverly, et al.

Nos. 00-3617/3618/3741

Bank. While Crockett was in the car waiting with the door

open for Warren to come out of the bank, a car pulled into the

bank parking lot. Crockett panicked and pulled away, leaving

Warren without a means of escape. When Warren emerged

from the bank and realized that Crockett had left, he stole a

Cadillac. 

The chief of police saw the Cadillac pulling away from the

bank and left in pursuit, but he ended up losing Warren in the

car chase. Eventually, the stolen Cadillac was recovered.

Inside the car, the police found some of the money stolen

from the bank and a .22-caliber revolver. The revolver turned

out to be the same type of gun used by Beverly in the May 12

and May 18 robberies. The police later recovered a .38-

caliber bullet from the gun fired by Crockett at the tellers in

the bank.

Rogers and Warren were taken into custody by the FBI in

August and December of 1995, respectively, partially as a

result of information given to FBI Agent Trombitas by Turns.

Rogers and Warren eventually cooperated with the FBI, and

ultimately Turns, Beverly, and Crockett were indicted on

July 20, 1999 and charged with conspiracy to commit armed

bank robbery, committing various armed bank robberies, and

for the possession of firearms during and in relation to these

crimes of violence.

II

The three defendants raise many issues, which we will

consider in the following order. All three defendants join in

the Batson challenge, so we will deal with it first in Part III.

We then turn to the novel issue of Beverly’s challenge to the

admissibility of mitochondrial DNA evidence in Part IV.

Turns and Crockett each appeal the denial of their separate

motions for acquittal, and these issues are dealt with in
Nos. 00-3617/3618/3741 United States v.

Beverly, et al.

11

Part V. Turns raises three issues peculiar to his trial and

sentence, which we deal with in Part VI. Finally, Crockett

raises a number of evidentiary issues and a claim of

prosecutorial misconduct, which we address in Part VII.

III

 Batson Challenge

Beverly, Crockett, and Turns claim that the prosecutor

exercised a peremptory challenge against a potential juror in

a racially discriminatory manner, in violation of the Equal

Protection Clause. See Batson v. Kentucky, 476 U.S. 79

(1986) (prohibiting the exercise of race-based peremptory

challenges). In this case, the prosecutor exercised a

peremptory challenge to exclude a black woman from the jury

venire: Mrs. McKeever. Crockett objected to this challenge,

noting that without Mrs. McKeever, there would not be any

African-Americans on the jury. The prosecutor stated that he

was using a peremptory challenge to remove Mrs. McKeever

because she had a brother who had spent time in prison and

also had a nephew in jail with whom she still had contact. The

district court found that the Government had articulated a

legitimate nondiscriminatory reason for the challenge and

permitted Mrs. McKeever’s removal. 

A Batson claim is analyzed in three steps. First, the

defendant must make a prima facie showing that the

prosecutor removed a potential juror for a discriminatory

reason. If the defendant makes this showing, the second step

requires the prosecutor to articulate a nondiscriminatory

reason for the removal. Assuming that the prosecutor does

so, the third step requires the trial court to determine whether

the opponent of the peremptory strike has proven purposeful

discrimination. See, e.g., United States v. Lucas, 357 F.3d

599, 609 (6th Cir. 2004).

12 United States v.

Beverly, et al.

Nos. 00-3617/3618/3741

In reviewing the government’s race-neutral explanation,we

need not find that the reason given is persuasive, or even

plausible. Ibid. However, the reason cannot be inherently

discriminatory. Ibid. Furthermore, the district court has the

responsibility to assess the prosecutor’s credibility under all

of the pertinent circumstances, including the final make-up of

the jury. We review that determination of fact for clear error.

United States v. Bartholomew, 310 F.3d 912, 919 (6th Cir.

2002). In this case, the prosecutor gave a plausible and raceneutral explanation for exercising a peremptory challenge

against Mrs. McKeever, which the district court accepted.

There was no evidence of discriminatory intent inherent in the

government’s proffered explanation, and a peremptory

challenge is not unconstitutional solely because it has a

racially disproportionate impact. Hernandez v. New York,

500 U.S. 352, 359-60 (1991). Under these circumstances, the

district court did not commit clear error in overruling the

Batson challenge. 

IV

Admissibility of Mitochondrial DNA Testing

Beverly, against whom mitochondrial deoxyribonucleic

acid (mtDNA) testing was used in this trial, argues that the

district court erred in admitting expert testimony concerning

mtDNA evidence. Specifically, Beverly argues that mtDNA

testing is not scientifically reliable because the laboratory that

did the testing in this case was not certified by an external

agency, the procedures used by the laboratory “sometimes

yielded results that were contaminated,” and the particular

tests done in this case were contaminated. In addition,

Beverly argues that even if the mtDNA evidence is

determined to be sufficiently reliable, its probative value is

substantially outweighed by its prejudicial effect. In this part

of his argument, Beverly focuses on the statistical analysis
Nos. 00-3617/3618/3741 United States v.

Beverly, et al.

13

presented, which he claims to have artificially enhanced the

probative value of the mtDNA evidence. According to

Beverly, Dr. Melton, the government’s expert, should only

have been allowed to testify that Beverly could not be

excluded as the source of the sample in question.

We review the district court’s decision to admit expert

testimony for an abuse of discretion. Kumho Tire Co. v.

Carmichael, 526 U.S.137,152 (1999); First Tenn. Bank Nat.

Ass’n v. Barreto, 268 F.3d 319, 331 (6th Cir. 2001). 

Federal Rule of Evidence 702 sets forth the requirements

for the admissibility of expert testimony as follows: 

If scientific, technical, or other specialized knowledge

will assist the trier of fact to understand the evidence or

to determine a fact in issue, a witness qualified as an

expert by knowledge, skill, experience, training, or

education, may testify thereto in the form of an opinion

or otherwise, if (1) the testimony is based upon sufficient

facts or data, (2) the testimony is the product of reliable

principles and methods, and (3) the witness has applied

the principles and methods reliably to the facts of the

case.

The wording of the rule reflects the now-standard inquiry set

out in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509

U.S. 579 (1993), which is the basis on which the district court

analyzed the expert testimony given in this case. See Nelson

v. Tenn. Gas Pipeline Co., 243 F.3d 244, 250 n.4 (6th Cir.),

cert. denied, 534 U.S. 822 (2001). Therefore, we review this

case under Daubert, which set forth a non-exclusive checklist

of factors for trial courts to use in assessing the reliability of

scientific expert testimony. These include 1) whether the

expert’s scientific technique or theory can be, or has been,

tested; 2) whether the technique or theory has been subject to

peer review and publication; 3) the known or potential rate of

error of the technique or theory when applied; 4) the existence

14 United States v.

Beverly, et al.

Nos. 00-3617/3618/3741

and maintenance of standards and controls; and 5) whether

the technique or theory has been generally accepted in the

scientific community. Daubert, 509 U.S. at 592-95;

Hardyman v. Norfolk & W. Ry., 243 F.3d 255, 260 (6th Cir.

2001). If the evidence is deemed to be reliable and relevant,

the judge must then determine if the probative value of the

evidence is outweighed by its prejudicial effect. Daubert, 509

U.S. at 595.

1. Mitochondrial DNA Testing in General

Before discussing the particular circumstances of this case,

it may be helpful to provide some general background

concerning mtDNA analysis. Generally speaking, every cell

contains two types of DNA: nuclear DNA, which is found in

the nucleus of the cell, and mitochondrial DNA, which is

found outside of the nucleus in the mitochondrion. The use

of nuclear DNA analysis as a forensic tool has been found to

be scientifically reliable by the scientific community for more

than a decade. The use of mtDNA analysis is also on the rise,

and it has been used extensively for some time in FBI labs, as

well as state and private crime labs. See, e.g., Micah A.

Luftig & Stephen Richey, Symposium: Serenity Now or

Insanity Later?: The Impact of Post-Conviction DNA Testing

on the Criminal Justice System: Panel One: The Power of

DNA, 35 New Eng. L. Rev. 609, 611 (2001). This technique,

which generally looks at the differences between people’s

mitochondrial DNA, has some advantages over nuclear DNA

analysis in certain situations. For example, while any given

cell contains only one nucleus, there are a vast number of

mitochondria. As a result, there is a significantly greater

amount of mtDNA in a cell from which a sample can be

extracted by a lab technician, as compared to nuclear DNA.

Thus, this technique is very useful for minute samples or

ancient and degraded samples. Ibid. In addition,

mitochondrial DNA can be obtained from some sources that

nuclear DNA cannot. For example, mtDNA can be found in

shafts of hair, which do not have a nucleus, but do have
Nos. 00-3617/3618/3741 United States v.

Beverly, et al.

15

plenty of mitochondria. Nuclear DNA can only be retrieved

from the living root of the hair where the nucleus resides.

United States v. Coleman, 202 F. Supp. 2d 962, 965 (E.D.

Mo. 2002) (accepting expert testimony by Dr. Melton, the

expert in this case, and admitting evidence based on mtDNA

testing). 

On the other hand, mtDNA is not as precise an identifier as

nuclear DNA. In the case of nuclear DNA, half is inherited

from the mother and half from the father, and each individual,

with the exception of identical twins, almost certainly has a

unique profile. MtDNA, by contrast, is inherited only from

the mother and thus all maternal relatives will share the same

mtDNA profile, unless a mutation has occurred. Ibid.

Because it is not possible to achieve the extremely high level

of certainty of identity provided by nuclear DNA, mtDNA

typing has been said to be a test of exclusion, rather than one

of identification. Id. at 966.

The entire mtDNA sequence, about sixteen thousand base

pairs, is considerably shorter than nuclear DNA, which has

approximately three billion pairs. Within the mtDNA, two

noncoding regions are targeted – Hypervariable-1 (HV1) and

Hypervariable-2 (HV2). Each of these regions is about 300

letters in code length and is a region that has a mutation rate

five to ten times greater than that of nuclear DNA. Usually

there is a one to two percent variance of mtDNA sequence

between unrelated individuals. Luftig & Richey, supra, at

612. It has been estimated that mutation within the mtDNA

control region is one nucleotide difference every 300

generations. National Commission on the Future of DNA

Evidence, The Future of Forensic DNA Testing: Predictions

of the Research and Development Working Group 7, Nat’l

Inst. of Justice (2000). But see Ann Gibbons, Calibrating the

Mitochondrial Clock, 279 Science 28 (1998) (discussing

research estimating that mutations occur as frequently as

every 40 generations). This academic dispute does not affect

this case directly. In general, the slower the mutation rate, the

16 United States v.

Beverly, et al.

Nos. 00-3617/3618/3741

more people who will have the same mtDNA pattern, and

vice-versa. However the figures presented to the jury were

from a database of actual DNA patterns collected by forensic

scientists. The mechanics of the analysis involves a process

similar to that used with nuclear DNA. Coleman, 202 F.

Supp.2d at 969.

This court has not until now had the opportunity to rule on

the admissibility of mtDNA testing. However, mtDNA

testing has been admitted into evidence by several state courts

and has been upheld on review. See, e.g., State v.

Underwood, 518 S.E.2d 231 (N.C. Ct. App. 1999); State v.

Scott, 33 S.W.3d 746 (Tenn. 2000); State v. Council, 515

S.E.2d 508 (S.C. 1999); People v. Klinger, 713 N.Y.S. 2d 823

(N.Y. Crim. Ct. 2000); Williams v. Maryland, 679 A.2d 1106

(Md. 1996).

2. Mitochondrial DNA in this Case 

The district court in this case held a very extensive hearing

in order to determine the admissibility of mtDNA evidence at

trial. The court determined that the techniques had been

established and accepted by the scientific community,

accepted by the courts, and had been subject to peer review.

Beverly now argues that the district court abused its

discretion on the basis of three objections.

Beverly argues that Dr. Melton’s laboratory, which had

analyzed the sample in this case, has never been certified by

an external agency. This point was raised in the pretrial

hearing, and, although there is no legal requirement that

Dr. Melton’s lab be so certified, the district court did question

Dr. Melton on this point. Laboratories doing DNA forensic

work are accredited through the American Society of Crime

Laboratory Directors. However, Dr. Melton’s lab, having

only been actively engaged in case work for about 11 months

at the time of the trial, was not yet able to apply for the

accreditation, but was expected to go through the process the
Nos. 00-3617/3618/3741 United States v.

Beverly, et al.

17

following spring. Furthermore, Dr. Melton’s own credentials

are considerable. Not only has she been working with

mtDNA since 1991, she has a Ph.D from Pennsylvania State

University in genetics; her thesis investigated mitochondrial

DNA as it would apply to forensic applications. In addition,

Dr. Melton has published a significant amount of work in this

field. 

Next, Beverly argues that Dr. Melton’s procedures would

sometimes yield results that were contaminated, and that

furthermore, the sample analyzed in this particular case was

contaminated. Testimony given by Dr. Melton and

Dr. Kessis, who was Beverly’s expert at trial, supported

Beverly’s general contention, but no evidence demonstrated

that any contamination in this case affected the results of the

analysis. Dr. Melton testified that “[we] occasionally have

what we call sporadic contamination,” probably as a result of

residue on a piece of equipment brought into the lab.

However, Dr. Melton was confident that no contamination of

the sample itself had occurred. The reagent blank in the test

of the sample itself did not show any indication of

contamination, in contrast to a separate reagent blank, used in

a different test tube, which was a control in the experiment.

Therefore, the actual data relied upon in this case, obtained

from the sequencing machine, did not indicate any presence

of a contaminant.

Finally, the district court carefully considered during the

pretrial hearing the question of whether the relevance of this

evidence outweighed its probative value. In particular,

Beverly argued that the jury would associate mitochondrial

DNA analysis with nuclear DNA analysis and give it the

same value, in terms of its ability to “fingerprint” a suspect.

The district court, however, decided that this issue was more

appropriately dealt with through a vigorous crossexamination, and in fact that was exactly what occurred at

trial. Moreover, the court noted the important probative value

that this evidence added to the trial. Finally, the court

18 United States v.

Beverly, et al.

Nos. 00-3617/3618/3741

separately considered the scientific reliability of the statistical

analysis offered by the government, concluding that:

The predictive effect of the statistical analysis is based

upon a formula which is apparently recognized in the

scientific community and used in a variety of scientific

contexts, and it has been used specifically here in the

analysis of mitochondrial DNA results. The Court

concludes that it’s an accepted and reliable estimate of

probability, and in this case, it led to results, interpreted

results, which substantially increase the probability that

the hair sample is the hair of the defendant in this case.

Based on the record compiled in the district court’s careful

and extensive hearing on this issue, there was no abuse of

discretion in admitting the mtDNA testing results. The

scientific basis for the use of such DNA is well established.

Any issues going to the conduct of the specific tests in

question were fully developed and subject to cross

examination. There was no error in finding that the testing

methods, and Dr. Melton’s testing in particular, were

sufficiently reliable to be admissible. Finally, the

mathematical basis for the evidentiary power of the mtDNA

evidence was carefully explained, and was not more

prejudicial than probative. 

It was made clear to the jury that this type of evidence

could not identify individuals with the precision of

conventional DNA analysis. Nevertheless, any particular

mtDNA pattern is sufficiently rare, especially when there is

no contention that the real culprit might have been a

matrilineal relative of the defendant, that it certainly meets the

standard for probative evidence: “any tendency to make the

existence of any fact that is of consequence to the

determination of the action more probable or less probable

than it would be without the evidence.” Fed. R. Evid. 401.

The statistical evidence at trial showed that, at most, less than

1% of the population would be expected to have this mtDNA
Nos. 00-3617/3618/3741 United States v.

Beverly, et al.

19

pattern. Even an article critical of mtDNA stated the most

frequent pattern applies in no more than 3% of the population.

Erica Beecher-Monas, The Heuristics of Intellectual Due

Process: A Primer for Triers of Science, 75 N.Y.U.L. Rev.

1563, 1655 n.535 (2000). It would be unlikely to find a

match between Beverly’s hair and the hair of a random

individual. The testimony was that, with a high degree of

confidence, less than one percent of the population could be

expected to have the same pattern as that of the hair recovered

from the bank robbery site, and that Beverly did have the

same pattern, and thus could not be excluded as the source of

the hair. Finding Beverly’s mtDNA at the crime scene is

essentially equivalent to finding that the last two digits of a

license plate of a car owned by defendant matched the last

two numbers of a license plate of a getaway car. It would be

some evidence — not conclusive, but certainly admissible.

We find the same here.

V

Motion for Acquittal

During the trial, at the close of the government’s case and

again at the close of all evidence, both Turns and Crockett

made a Rule 29(a) motion for acquittal. On both occasions

the district court denied their motions, and both defendants

now appeal that decision. 

The relevant question in assessing a challenge to

evidentiary sufficiency 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.” Jackson v. Virginia,

443 U.S. 307, 319 (1979) (emphasis in original). See also

United States v. Sykes, 292 F.3d 495, 498-99 (6th Cir. 2002).

“Circumstantial evidence alone, if substantial and competent,

20 United States v.

Beverly, et al.

Nos. 00-3617/3618/3741

may sustain a conviction under this deferential standard of

review.” United States v. Adams, 265 F.3d 420, 423 (6th Cir.

2001) (citations omitted).

1. Crockett

Crockett contends that there is insufficient evidence in the

record to establish that he was involved in a conspiracy to

commit bank robberies as set forth in Count One of the

indictment. To establish a conspiracy, in violation of 18

U.S.C. § 371, the government must prove beyond a

reasonable doubt that there was “an agreement between two

or more persons to act together in committing an offense, and

an overt act in furtherance of the conspiracy.” United States

v. Crossley, 224 F.3d 847, 856 (6th Cir. 2000) (quoting

United States v. Milligan, 17 F.3d 177, 182 (6th Cir. 1994)).

This requirement has been broken down into a four-part test,

which requires the government to prove that: “1) the

conspiracy described in the indictment was wilfully [sic]

formed, and was existing at or about the time alleged; 2) the

accused willfully [sic] became a member of the conspiracy;

3) one of the conspirators thereafter knowingly committed at

least one overt act charged in the indictment at or about the

time and place alleged; and 4) that overt act was knowingly

done in furtherance of some object or purpose of the

conspiracy as charged.” United States v. Kraig, 99 F.3d

1361, 1368 (6th Cir. 1996). The government need not show

a formal written agreement; a simple understanding between

the parties will suffice. United States v. Clayton, 357 F.3d

560, 573 (6th Cir. 2004). Nor does “every member of a

conspiracy [need to be] an active participant in every phase of

the conspiracy.” United States v. Christian, 786 F.2d 203,

211 (6th Cir. 1986) (quoting United States v. Cuni, 689 F.2d

1353, 1356 (11th Cir. 1982)). The defendant need only

“know of the conspiracy, associate himself with it and

knowingly contribute his efforts in its furtherance.” United

States v. Barger, 931 F.2d 359, 369 (6th Cir. 1990) (quoting

United States v. Luxenberg, 374 F.2d 241, 250 (6th Cir.
Nos. 00-3617/3618/3741 United States v.

Beverly, et al.

21

1967)). “A conspiracy may be inferred from circumstantial

evidence that can reasonably be interpreted as participation in

the common plan.” Ibid. (quoting United States v. Strong,

702 F.2d 97 (6th Cir. 1983)). 

The government presented a considerable amount of

evidence establishing Crockett’s active participation in the

conspiracy, particularly through the testimony of Rogers and

Warren. For example, both Rogers and Warren testified to

Crockett’s participation in the robbery at the Security

National Bank, specifically describing his participation in

creating disguises used during the robbery and in conducting

the robbery itself. In addition, there was photographic

evidence of his presence at the Security National Bank.

Warren also testified to Crockett’s participation in the robbery

of the Park National Bank in Hebron. There also was

evidence that Crockett fired his gun during the course of that

robbery, as a bullet matched to his gun was recovered from a

file cabinet in the bank. A rational trier of fact could have

reasonably relied upon any of this evidence to find that

Crockett was a willing participant in the conspiracy charged

in Count One of the indictment. 

2. Turns

Turns argues that the government's evidence was

insufficient because “the credibility of Rogers and Warren is

suspect to the point that reasonable minds should reject their

testimony as a matter of law.” Turns’s Brief at 24. However,

determining the credibility of witnesses is a task for the jury,

not this court. See United States v. Hilliard, 11 F.3d 618, 620

(6th Cir. 1993) (noting that this court does not weigh

evidence, make credibility determinations, or substitute its

judgment for that of the jury). In reviewing the denial of a

motion for acquittal, we must “refrain from independently

judging the credibility of witnesses or [the] weight of the

evidence.” United States v. Walls, 293 F.3d 959, 967 (6th

Cir. 2002). Moreover, all reasonable inferences are to be

22 United States v.

Beverly, et al.

Nos. 00-3617/3618/3741

drawn in the government’s favor. United States v. Kelly, 204

F.3d 652, 656 (6th Cir. 2000). The jury obviously accepted

the testimony of Warren and Rogers. Moreover, Turns

provided the FBI with a detailed account of the robberies, his

gun was found with two of the robbers, he provided false

identification to a co-conspirator, and he made several

purchases and bank deposits directly after three of the

robberies to which he was linked. The evidence against Turns

was sufficient for a rational trier of fact to have found Turns

guilty. 

VI

A. Severance of Turns’s Trial

Turns contends that the district court should not have joined

his trial with Beverly’s and Crockett’s. Turns argues that the

alleged conspiracy between Rogers, Warren, and Turns was

entirely separate from the alleged conspiracy that existed

between Rogers, Warren, and Crockett that, according to

Turns, dominated in this case. We do not find this argument

persuasive.

Rule 8(b) of the Federal Rules of Criminal Procedure

permits two or more defendants to be charged in the same

indictment “if they are alleged to have participated in the

same act or transaction or in the same series of acts or

transactions constituting an offense or offenses.” All of the

defendants committed bank robberies with Rogers and

Warren during the course of the conspiracy and their

testimony was admissible against all of the defendants,

including Turns. The robberies were a series of offenses that

were conducted over a relatively short period of time and

performed using a similar pattern of behavior. The district

court, therefore, did not err in joining the trial of Turns with

that of Crockett and Beverly.
Nos. 00-3617/3618/3741 United States v.

Beverly, et al.

23

Turns relies on United States v. Hatcher, 680 F.2d 438, 441

(6th Cir. 1982), in which this court held that the joinder of

two defendants was improper under Rule 8(b). In Hatcher,

both defendants, Manetas and Hatcher, were jointly indicted

for federal narcotics crimes. Although both defendants had

been charged with three counts relating to the possession and

distribution of heroin, one of the defendants had also been

charged with three counts relating to the possession and

distribution of cocaine in an entirely unrelated series of

offenses. This court held that since there was “no connection

between Manetas and the cocaine-related charges against

Hatcher,” the joinder of the two defendants was improper.

Ibid. The court further noted that “[t]he joinder of multiple

defendants is proper under Rule 8(b) only if each of the

counts of the indictment arises out of the same act or

transaction or series of acts or transactions . . . .” Ibid. 

The case before us now is distinguishable from Hatcher,

because each bank robbery can easily be viewed as part of

one ongoing set of transactions, linked together by Rogers

and Warren. Furthermore, we have held that “a group of acts

or transactions constitutes a ‘series’ if they are logically

interrelated,” and that a “group of acts or transactions is

logically interrelated, for instance, if the acts or transactions

are part of a common scheme or plan.” See United States v.

Johnson, 763 F.2d 773, 776 (1985) (noting that several other

circuits have held similarly and citing United States v.

Corbin, 734 F.2d 643, 649 (11th Cir. 1984); United States v.

Cavale, 688 F.2d 1098, 1106 (7th Cir. 1982); United States v.

Ford, 632 F.2d 1354, 1371-72 (9th Cir. 1980)). Given the

common scheme involved in this case, the district court did

not abuse its discretion in joining Turns’s trial with that of

Beverly and Crockett, pursuant to Rule 8(b). 

Turns also argues that the district court erred in denying his

motion to sever the trial, brought under Rule 14 of the Federal

Rules of Criminal Procedure. Severance of a joint trial is

permitted, if joinder is prejudicial. Fed. R. Crim. P. 14; see

24 United States v.

Beverly, et al.

Nos. 00-3617/3618/3741

also United States v. Critton, 43 F.3d 1089, 1097-98 (6th Cir.

1995) (“Rule 14 allows for severance if it appears that a

defendant or the government is prejudiced by a joinder of

offenses or of defendants.”) (internal quotation marks

omitted). We review a denial of severance by the district

court for a clear abuse of discretion. United States v. Causey,

834 F.2d 1277, 1287 (6th Cir. 1987). Furthermore, a strong

policy presumption exists in favor of joint trials when charges

will be proved by the same evidence and result from the same

acts. See United States v. Hamilton, 689 F.2d 1262, 1275 (6th

Cir. 1982).

Turns argues that his trial was prejudiced by being joined

with the other defendants since the credibility of the

testimony of Rogers and Warren, the government witnesses

who placed Turns at the scene of the crime, was bolstered by

additional pieces of incriminating and corroborating evidence

in the case against Beverly and Crockett. For example, in

Crockett’s case, the government presented a photograph taken

during one of the bank robberies, which was purported to be

of Crockett while he was in the process of robbing the bank.

In Beverly’s case, there was mtDNA evidence presented that

linked Beverly to one of the robberies. These pieces of

evidence corroborated the testimony given by Rogers and

Crockett, although the evidence would have been

inadmissible in a trial focused solely on Turns. 

Turns’s contention that Rogers’s and Warren’s testimony

was bolstered during the trial by corroborating evidence

presented in the case against Beverly and Crockett is

unpersuasive. We have stated in Causey, 834 F.2d at 1288,

that “a defendant is not entitled to severance simply because

the evidence against a co-defendant is far more damaging

than the evidence against him.” Moreover, a defendant does

not have a right to a separate trial, merely because his

likelihood of acquittal would be greater if severance were

granted. See United States v. Gallo, 763 F.2d 1504, 1526 (6th

Cir. 1985) (citing United States v. Stirling, 571 F.2d 708, 733
Nos. 00-3617/3618/3741 United States v.

Beverly, et al.

25

(2d Cir. 1978); United States v. Larson, 526 F.2d 256, 260

(5th Cir. 1976)). “Absent a showing of substantial prejudice,

spillover of evidence from one case to another does not

require severance.” Ibid. (citing United States v. Ricco, 549

F.2d 264, 270-71 (2d Cir. 1977)). Turns has not made a

showing of substantial prejudice in this case, and thus the

district court did not abuse its discretion by denying Turns’s

motion for severance.

B. The Cross-Examination of Anthony Rogers

Turns contends that the district court abused its discretion

by not allowing him to question Rogers on cross-examination

about his alleged attempt to sexually molest Turns’s twelveyear-old daughter. We review a trial court’s rulings on the

scope of cross-examination for an abuse of discretion. United

States v. Chance, 306 F.3d 356, 385 (6th Cir. 2002). 

At trial, during his opening statement, Turns’s counsel

stated that “Mr. Rogers is not a very nice person, that he

attempted to molest my client’s twelve-year old daughter.

She was twelve-years old at the time . . . .” The government

objected at this point, arguing that this information was

irrelevant and therefore inadmissible. Turns’s counsel

responded that the information was crucial to Turns’s defense

and that it was “not being offered for impeachment purposes.”

Defense counsel went on to explain that this information was

relevant to Turns’s motivation for going to the FBI and

providing information on Rogers and Warren. The district

court questioned Turns’s counsel further as follows:

The Court: Again, what difference does it make what

his motive was in going to the FBI?

26 United States v.

Beverly, et al.

Nos. 00-3617/3618/3741

Turns’s Counsel: Isn’t it always important when the

government is trying to prove a case against somebody

what somebody’s motive is?

The Court: What the motive is is the motive for the

bank robberies and the conspiracy.

The district court subsequently sustained the objection. Later

in the trial, during Turns’s cross-examination of Rogers,

Turns’s counsel again tried to question Rogers about his

alleged sexual assault of Turns’s daughter. This time,

however, Turns’s counsel noted that he wished to question

Rogers on this point in order to prove bias: to show that the

abuse of Turns’s daughter related to why Rogers was

appearing as a government witness against Turns. The

district court again decided that the testimony was

inadmissible, stating in relevant part:

I am going to adhere to my original ruling. This would

be injecting a matter that’s entirely collateral to the issues

here, not relevant in any way, and extremely prejudicial

to the government. So I am going to adhere to my earlier

ruling, and you’re not permitted to ask such questions.

Later, when the issue was raised again, defense counsel told

the court that he would specifically like to ask Rogers: “Isn’t

it true that you knew Doug Turns was aware of your sexual

misconduct with his daughter, and that’s why you falsely

accused him of these bank robberies?” Before ruling on

whether this question could be asked, the court asked counsel

if he had any information indicating that Mr. Rogers was

aware of Turns’s accusations, to which Turns’s counsel

responded that he did not. Again, the court ruled that this line

of questioning was improper. The jury heard about the

allegation when Turns testified himself that Rogers had

molested his daughter, which prompted him to turn Rogers in

to the FBI. Turns now argues that the district court committed

constitutional error in denying Turns the ability to prove bias.
Nos. 00-3617/3618/3741 United States v.

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27

The trial court has broad discretion regarding the scope of

cross-examination. United States v. Mohney, 949 F.2d 1397,

1409 (6th Cir. 1991). Yet, as pointed out by Turns in his

brief, the Supreme Court has noted that the “crossexamination of a witness is a matter of right.” Alford v.

United States, 282 U.S. 687, 691 (1931). Furthermore, the

Court has subsequently stated that “[c]ross-examination is the

principal means by which the believability of a witness is

subject to exploration at trial, and is ‘always relevant as

discrediting the witness and affecting the weight of his

testimony.’” Davis v. Alaska, 415 U.S. 308, 316 (1974)

(holding that precluding a defendant from cross-examining a

key prosecution witness to show bias violated the defendant’s

constitutional right to confront the witness testifying against

him). However, the right to cross-examine is not absolute.

United States v. Atisha, 804 F.2d 920, 929-30 (6th Cir. 1986).

Trial judges have latitude to “impose reasonable limits on

such cross-examination based on concerns about, among

other things, harassment, prejudice, confusion of the issues,

the witness’ safety, or interrogation that is repetitive or only

marginally relevant.” United States v. Blakeney, 942 F.2d

1001, 1022 (6th Cir. 1991) (emphasis omitted). See also

United States v. Broadus, 7 F.3d 460, 465 (6th Cir. 1993). 

In this case the trial court did not abuse its discretion in

ruling that this information was inadmissible, as it was only

marginally relevant and highly prejudicial. It was not

obviously relevant for purposes of demonstrating bias,

because even if Rogers had sexually molested Turns’s child,

there was no evidence that Rogers had ever been accused of

doing so, or knew that anyone suspected him of committing

such an offense. Unless Rogers had been confronted, there

would be no reason for him to be particularly biased against

Turns. The information more accurately explains why Turns

would be biased against Rogers, and that is irrelevant to this

inquiry. Any evidence of such a heinous act is likely to be

prejudicial. Furthermore, any error in the district court’s

ruling would be harmless, since Turns shared his personal

28 United States v.

Beverly, et al.

Nos. 00-3617/3618/3741

conviction that Rogers had molested his daughter during his

own testimony.

C. Turns’s Sentence

Turns argues that his sentence of 858 months, or 71 1/2

years, largely mandated by the requirement of consecutive

sentencing under 18 U.S.C. § 924(c), is cruel and unusual

punishment, in violation of the Eighth Amendment. In

particular, Turns argues that his sentence is “grossly

disproportionate” to his crime of having driven the getaway

car in four bank robberies and provided false identification

documents, especially given that he had no prior criminal

record and supplied critical information to the FBI about the

crimes during its investigation. 

Since a constitutional challenge to a sentence raises a

question of law, we review Turns’s claim de novo. United

States v. Flowal, 163 F.3d 956, 963 (6th Cir. 1998). Turns

relies principally on the Supreme Court case of Enmond v.

Florida, 458 U.S. 782 (1982), in which the Court vacated a

death sentence that had been imposed on the driver of a

getaway car in a double murder. In Enmond, the Court

reasoned that the sentence did not serve the “two principal

purposes” that the death penalty is intended to serve:

retribution and deterrence. Id. at 798. The Court reasoned

that since the defendant “did not kill or attempt to kill” the

victims, his “culpability [was] plainly different from that of

the robbers who killed,” and thus the sentence did not serve

the goal of retribution. Ibid. Furthermore, the defendant “did

not [have] any intention of participating in or facilitating a

murder,” and “it seems likely that ‘capital punishment can

serve as a deterrent only when murder is the result of

premeditation and deliberation.’” Id. at 799 (quoting Fisher

v. United States, 328 U.S. 463, 484 (1946) (Frankfurter, J.

dissenting)). Finally, “[u]nless the death penalty when
Nos. 00-3617/3618/3741 United States v.

Beverly, et al.

29

applied to those in Enmund’s position measurably contributes

to one or both of these goals, it ‘is nothing more than the

purposeless and needless imposition of pain and suffering,’

and hence an unconstitutional punishment.” Id. at 798

(quoting Coker v. Georgia, 433 U.S. 584, 592 (1977)).

The “narrow proportionality principle,” means that only

“extreme sentences that are grossly disproportionate to the

crime are prohibited.” Flowal, 163 F.3d at 963-64. A

plurality of the Court rejected the defendant’s assertion that

his life term without parole was disproportionate because it

was his first felony conviction. Harmelin v. Michigan, 501

U.S. 957, 994 (1991). Instead, the Court observed that the

defendant had been convicted of possession of more than 650

grams of cocaine and held that Michigan could determine that

the seriousness of the offense warranted the severe sentence.

Id. at 990. 

Here, too, Turns has never been convicted of a felony

before. However, he was convicted of participating in four

separate armed bank robberies. Even though his role was to

drive the getaway car, he was fully aware of the crime he was

participating in and thus his culpability is not diminished.

Furthermore, at least one of the guns used in the course of the

robberies was traced back to Turns, who had purchased it in

1993 and had given it to Rogers. Turns was sentenced to five

years for the first of four counts of armed bank robbery

brought pursuant to 18 U.S.C. § 2113 (a) and (d) and to

twenty years for the remaining three counts, to run

consecutively. No one of these sentences is intrinsically

“grossly disproportionate” to the crime of armed bank

robbery. Mandating consecutive sentences is not an

unreasonable method of attempting to deter a criminal, who

has already committed several offenses using a firearm, from

doing so again. See Harmelin, 501 U.S. at 994 (stating that

mandatory penalties are not “unusual in the constitutional

sense”).

30 United States v.

Beverly, et al.

Nos. 00-3617/3618/3741

This court has addressed a similar claim in an unpublished

decision. United States v. Clark, 41 Fed. Appx. 745 (6th Cir.

2002). A defendant argued that his thirty-two-year sentence

for two convictions under 18 U.S.C. § 924(c) violated the

Eighth Amendment’s prohibition on cruel and unusual

punishment. The panel addressed the merits of the

defendant’s claim, even though it did not appear that his

counsel had raised this issue at the sentencing hearing, which

would ordinarily preclude review, stating that it was “satisfied

that the Eighth Amendment did not bar [the defendant’s]

sentence.” Id. at 751. The court also took note of the fact that

in a similar challenge, the Ninth Circuit had held that a

defendant’s sentence based on his conviction under 18 U.S.C.

§ 924(c), which accounted for twenty-five years of his total

sentence, was not cruel and unusual. Ibid. (citing United

States v. Parker, 241 F.3d 1114, 1117-18 (9th Cir. 2001)). 

In this case, although the length of time to be served by

Turns, as required by 18 U.S.C. § 924(c), is severe, it would

appear to serve the twin goals of retribution and deterrence,

without being grossly disproportionate to the several offenses

committed. The Supreme Court has never held that a

sentence to a specific term of years, even if it might turn out

to be more than the reasonable life expectancy of the

defendant, constitutes cruel and unusual punishment. See

Harmelin, 501 U.S. at 996. In the absence of such guidance,

we see no principle on which such a result could be based,

and we decline to establish such a principle here. But see

Ramirez v. Castro, No. 02-56066, 2004 WL 868517 (9th Cir.

Apr. 19, 2004) (holding 25 years-to-life sentence for three

shoplifting convictions, two of which occurred in 1991,

violated the Eighth Amendment).
Nos. 00-3617/3618/3741 United States v.

Beverly, et al.

31

VII

A. Pretrial Identification

Crockett appeals the district court’s decision to admit into

evidence the pretrial identification of Crockett by Mrs. Parks,

who was his wife when he was arrested, but not when he

committed the offense for which he was identified. In

addition, Crockett appeals the district court’s admission of

FBI Agent Trombitas’s testimony, as it pertained to the

identification made by Mrs. Parks. 

Following Crockett’s arrest in July 1999, FBI Agent

Trombitas went to Crockett’s home in order to interview

Crockett’s wife, Mrs. Parks. Trombitas first informed Mrs.

Parks that her husband had been arrested earlier in the day for

his involvement in several bank robberies. Agent Trombitas

then showed her a photograph that was taken during the bank

robbery at the Security National Bank, which occurred on

May 18, 1995, approximately two years before Crockett and

Mrs. Parks were married, but nevertheless during their

acquaintance. Mrs. Parks identified the man that Trombitas

pointed to in the photograph as her husband.

The government sought to admit this pretrial identification

at trial and Crockett filed a motion to suppress. As a result,

Judge Graham held a pretrial hearing on the admissibility of

Mrs. Parks’s identification. At the pretrial hearing,Trombitas

testified as to the circumstances under which the

identification was made. Trombitas explained that he took

out the photograph, placed it in front of her and asked, “do

you recognize that person there?” According to Trombitas,

Mrs. Parks picked up the photograph, and with one hand on

her mouth, said “oh, my God, that looks like Johnny.” At that

point, Trombitas noticed her eyes tearing up and asked her to

reaffirm the identification, saying: “so that looks like

Johnny?” Ibid. Mrs. Parks responded “yes, it does, it’s him,

and I’m not going to lie for him.” Ibid. At this point, Mrs.

32 United States v.

Beverly, et al.

Nos. 00-3617/3618/3741

Parks began to cry. Upon Trombitas’s request, Mrs. Parks

turned over the photograph and placed her name, the date, and

Crockett’s name on the back of the photograph. Judge

Graham ruled that, based upon the totality of the

circumstances, the photographic identification procedure was

sufficiently reliable to permit the witness to testify. 

Later on, at trial, the government represented to the court

that the FBI and the postal investigative service had “gone to

great lengths” to try to serve Mrs. Parks with no success. As

a result, the prosecution sought to introduce this pretrial

identification throughAgent Trombitas’s testimony. Crockett

objected on the ground that this was hearsay. However, the

court agreed with the government that Mrs. Parks’s

identification, based on Trombitas’s testimony, was

admissible as an excited utterance, an exception to the

hearsay rule.

Ultimately, after Trombitas had given his testimony, Mrs.

Parks testified at the trial. She recanted her identification of

Crockett, although she admitted that she had told Agent

Trombitas when he interviewed her after Crockett’s arrest,

that the picture “kind of looked like Johnny.” 

1. Admission of the Pretrial Identification.

We review the denial of a motion to suppress identification

evidence for clear error. United States v. Hamilton, 684 F.2d

380, 383 (6th Cir. 1982). The burden rests on Crockett to

demonstrate that the pretrial identification procedure was

impermissibly suggestive. United States v. Hill, 967 F.2d

226, 230 (6th Cir. 1992). If Crockett can demonstrate that the

police performed an unduly suggestive photographic lineup,

then the trial court must determine, in light of all the

circumstances, whether the unfair suggestiveness was

conducive to a “very substantial likelihood of irreparable

misidentification.” Simmons v. United States, 390 U.S. 377,

384 (1968); Hill, 967 F.2d at 230. The Supreme Court has
Nos. 00-3617/3618/3741 United States v.

Beverly, et al.

33

listed factors that a court should weigh in determining

whether an identification is reliable, even though an unduly

suggestive identification procedure may have been used.

These factors are: 1) the witness’s opportunity to view the

criminal at the time of the crime; 2) the witness’s degree of

attention, 3) the accuracy of the witness’s prior description of

the criminal; 4) the level of certainty demonstrated at the

confrontation; and 5) the time between the crime and the

confrontation. Neil v. Biggers, 409 U.S. 188, 198-200 (1972)

(stating that the “likelihood of misidentification . . . violates

a defendant's right to due process,” not a suggestive line-up

per se).

Before ruling on the admissibility of this evidence, the

district court in this case carefully considered the reliability of

the identification. The judge noted that there was only one

photograph, that the witness did not observe the offense, but

was certainly familiar with the suspect, and that the

photograph was of “very good quality . . . clearly portray[ing

Crockett’s] facial features, as well as all of the other

characteristics of his physical anatomy.” Although these

observations are not necessarily helpful in evaluating all of

the Biggers factors outlined above, they do properly address

the question of reliability, the fundamental inquiry. 

This was not a typical police photo spread in which a

witness is asked identify an otherwise-unknown perpetrator

based solely on observation at the time of the crime. In this

instance, Mrs. Parks was being asked whether the bank

surveillance picture in fact depicted someone she knew very

well and would readily recognize. The Biggers factors are not

particularly helpful in a case such as this, where the

identification has been made by someone close to the suspect.

Rather, we should be guided by cases in which identifications

have been made by relatives or close friends. United States

v. Saniti, 604 F.2d 603 (9th Cir. 1979), held that two

roommates of the accused could properly be permitted to

identify the defendant as the person in a bank surveillance

34 United States v.

Beverly, et al.

Nos. 00-3617/3618/3741

photo. See also United States v. Borelli, 621 F.2d 1092 (10th

Cir. 1980) (holding that a trial court did not abuse its

discretion by admitting into evidence identification testimony

of defendant’s stepfather who recognized the defendant in a

bank surveillance photo).

In this case, although Mrs. Parks was provided with only a

single photograph, it was not presented in a suggestive

manner. She was not asked “is this your husband?” The

identification was not likely to have produced a

misidentification, given Mrs. Parks’s familiarity with the

defendant at the time when the picture was taken.

Furthermore, given her relationship to the defendant, she

would be unlikely to be biased against him, and would have

every reason not to identify Crockett to the authorities, if

there was any doubt. The district court, therefore, did not

commit clear error in denying Crockett’s motion to suppress

this pretrial identification.

2. Excited Utterance.

The district court separately analyzed the question of

whether Agent Trombitas would be allowed to testify about

the statements made by Mrs. Parks during his interview, in

which she identified Crockett as one of the men in the bank

surveillance photo. It is undisputed that Trombitas’s

testimony with regard to Mrs. Parks’s identification of

Crockett was hearsay; what is disputed is whether the

comments were “excited utterances” and therefore within an

exception to the hearsay rule. Federal Rule of Evidence

803(2) provides that “a statement relating to a startling event

or condition made while the declarant was under the stress of

excitement caused by the event or condition” is not barred by

the hearsay rule. The excited utterance rule requires that

1) there be an event startling enough to cause nervous

excitement; 2) the statement be made before there is an

opportunity to contrive or misrepresent; and 3) the statement

be made while the person in under the stress of the excitement
Nos. 00-3617/3618/3741 United States v.

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35

caused by the event. Haggins v. Warden, Fort Pillow State

Farm, 715 F.2d 1050, 1057 (6th Cir. 1983). See also United

States v. Winters, 33 F.3d 720, 722-23 (6th Cir. 1994). 

The district court found that Mrs. Parks’s statements met

the three requirements of our excited utterance doctrine.

First, viewing the “photograph of the individual that she

recognized as her husband committing a bank robbery” was

a startling event. Second, according to Trombitas’s

testimony, Mrs. Parks uttered the words “oh, my God, that

looks like Johnny,” as soon as she saw the photograph, and

therefore before she could have had an opportunity to

“contrive or misrepresent.” Third, Mrs. Parks identified

Crockett in her very first statement upon seeing the

photograph, and then with tears in her eyes, reaffirmed that

identification, evidence of the fact that she was still under the

stress of the moment. The district court did not abuse its

discretion in its admission of Trombitas’s testimony as it

related to Mrs. Parks’s pretrial identification.

B. Admissibility of Crockett’s Income Tax Returns

Crockett contends that evidence presented at trial by the

government reflecting the fact that he did not file a tax return

in 1994 or 1995 was irrelevant and prejudicial. Crockett

made a timely objection to the admission of this evidence on

these grounds. The court decided to allow the evidence to be

presented, albeit with a limiting instruction to the jury,

intended to cure any concerns over the potentially prejudicial

nature of this information. The instruction given by the court

was as follows:

Ladies and gentlemen, let me explain the limited nature

of the evidence that you are hearing about this

certification of an absence of tax return. None of these

defendants is charged with any offense relating to failing

36 United States v.

Beverly, et al.

Nos. 00-3617/3618/3741

to file tax returns or not reporting income or anything of

that nature, and that’s not why this is being offered for

you. There’s no suggestion whatsoever that any of them

has done anything improper in regard to their tax returns.

This evidence is being offered only for the limited

purpose of assisting you in determining what income

they may have had during the years in question, and

that’s the only purpose for which the evidence is being

used.

We review the district court’s decision regarding the

admission of evidence for an abuse of discretion. United

States v. Denton, 246 F.3d 784, 788 (6th Cir. 2001). “Even

if the trial court abuses its discretion, a new trial is not

required unless [the] ‘substantial rights’ of a party are

affected.” United States v. Bonds, 12 F.3d at 540, 554 (6th

Cir. 1993) (citing Fed. R. Crim. P. 52(a); Rye v. Black &

Decker Mfg., 889 F.2d 100, 103 (6th Cir. 1989)). That is, “an

abuse of discretion that does not affect substantial rights is

harmless error and is to be disregarded.” Ibid. (citing Fed. R.

Crim P. 52(a)).

Crockett contends that the evidence demonstrating that he

did not file tax returns in 1994 and 1995 was irrelevant for

two reasons. First, Crockett points out that he was not on trial

for any illegal activity in 1994. Second, no evidence was

offered by the government to demonstrate that he had spent

more money than he could have earned without being

required to file an income tax return during the relevant time

period. Crockett also argues that whatever potentialrelevance

this evidence had was outweighed by its prejudicial effect,

although he does not elaborate further as to how the evidence

was prejudicial. 

Prior to submitting this information with regard to

Crockett’s tax returns, the government had introduced

evidence that Crockett purchased a 1984 Cadillac automobile

for $2,500 on July 24, 1995, approximately six weeks after
Nos. 00-3617/3618/3741 United States v.

Beverly, et al.

37

the Security National Bank robbery. Crockett’s failure to file

an income tax return in 1995 can be considered to be relevant:

if Crockett’s legal income was insufficient to require a return

to be filed, it would seem unlikely that someone making such

a small income would be able to buy a car for $12,500 in

cash. Crockett’s failure to file a tax return in 1994, however,

is less relevant, although it might be seen as demonstrating

that Crockett did not have a large income in 1994 that could

have explained purchases made in 1995. In any case, given

the district court’s clear instructions to the jury and warning

that this evidence was not intended to show that the defendant

had committed tax fraud, the evidence would not have had a

prejudicial impact on Crockett’s trial, affecting his substantial

rights. The district court, therefore, did not abuse its

discretion in admitting evidence demonstrating that Crockett

had not filed tax returns in 1994 and 1995.

C. Crockett’s Examination of Rogers’s Probation Officer

Crockett contends that the district court erred in imposing

limitations on Crockett’s examination of Rogers’s probation

officer. We review a trial court’s rulings on the scope of

cross-examination for an abuse of discretion. United States

v. Chance, 306 F.3d 356, 385 (6th Cir. 2002). 

During the course of the trial, Crockett asked the district

court to approve the issuance of a subpoena for the court’s

probation officer, Ms. Laura Jensen. The district court

approved the issuance of that subpoena, but according to the

court’s local rules, a judge is required to determine whether,

and to what extent, a probation officer should be permitted to

testify. S.D. Ohio Crim. R. 32.2(b). The rule further states,

in relevant part:

(d) The Court shall authorize a Probation or Pretrial

Services Officer to produce records or testify only if 1)

38 United States v.

Beverly, et al.

Nos. 00-3617/3618/3741

disclosure is expressly authorized by federal law or 2) the

Court finds there has been a particularized showing of a

compelling need for such disclosure and that the

information is necessary to meet the ends of justice. 

(e)(1) If the Court finds that a Probation or Pretrial

Services Officer shall be authorized to testify or to

produce records, the authorization shall be limited to

only those matters directly relevant to the demonstrated

need. The Court’s Order shall identify the records which

shall be produced and the subject matter of the testimony

which is authorized. 

S.D. Ohio Crim R. 32.2(d) - (e)(1). In order to make the

necessary determinations pursuant to the rule, the court held

a hearing regarding the possible testimony of Ms. Jensen. At

the hearing, Turns represented to the court that he wished to

question Ms. Jensen for the purpose of attacking Rogers’s

credibility by showing that Rogers had made statements to

Ms. Jensen that contradicted his testimony at trial. The line

of questioning related primarily to information found in

Rogers’s presentencing report, for which Ms. Jensen had

interviewed Rogers. However, the district court found that

Turns had not laid a proper foundation in Rogers’s testimony,

except with respect to Rogers’s substance abuse, since Turn’s

attorney had not drawn Rogers’s attention to his prior

allegedly inconsistent statements in the report. For this

ruling, the court relied on Federal Rule of Evidence 613(b),

which states in relevant part:

Extrinsic evidence of a prior inconsistent statement by a

witness is not admissible unless the witness is afforded

an opportunity to explain or deny the same and the

opposite party is afforded an opportunity to interrogate

the witness thereon, or the interests of justice otherwise

require. 
Nos. 00-3617/3618/3741 United States v.

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39

The district court determined that Crockett’s counsel had

demonstrated a compelling need for such testimony and

reviewed Crockett’s cross-examination of Rogers in order to

determine whether a proper foundation had been laid. On the

basis of that review, the court limited Crockett’s examination

of the probation officer to matters relating to substance abuse

and prohibited Crockett from questioning the probation

officer about information relating to Rogers’s mental and

emotional health. 

Crockett now contends that the district court’s decision to

limit the examination of probation officer Jensen denied him

a fair trial. He maintains that the district court could not first

rule that there has been a particularized showing of a

compelling need for such disclosure, and that the information

is necessary to meet the ends of justice, and then limit the

presentation of that evidence. Such contradictory rulings

would violate the local rule that governed the hearing on Ms.

Jensen’s trial testimony. However, Federal Rule of Evidence

613(b) states that extrinsic evidence of a prior inconsistent

statement by a witness is not admissible if the witness has not

had an opportunity to explain the prior inconsistency.

Crockett’s lawyer failed to mention the pre-sentence report to

Rogers in any context other than the latter’s denial of any

substance abuse. The Federal Rules of Evidence preempt

local court rules. Therefore, the judge correctly limited the

probation officer’s testimony to the one topic that had been

linked to Rogers’s pre-sentence report. 

D. Challenge for Cause

Crockett urges this court to hold that the district court

abused its discretion in failing to excuse a potential juror for

cause. Crockett stated a challenge for cause against a juror

who had once worked at the London, Ohio Correctional

Institution, where Crockett had previously been incarcerated.

40 United States v.

Beverly, et al.

Nos. 00-3617/3618/3741

Crockett indicated that he recognized the man. The district

court questioned the potential juror about whether he

recognized anyone in the courtroom, but the man denied

recognizing anyone. Based on this response, the court denied

the challenge for cause. Later, Crockett excused the same

juror with his last peremptory strike.

Whether or not Crockett’s challenge for cause was

meritorious, the Supreme Court’s decision in United States v.

Martinez-Salazar, 528 U.S. 304 (2000), forecloses Crockett’s

claim. “[A] defendant’s exercise of peremptory challenges . . .

is not denied or impaired when the defendant chooses to use

a peremptory challenge to remove a juror who should have

been excused for cause.” Id. at 317. See also United States

v. Quinn, 230 F.3d 862, 865 (6th Cir. 2000). Furthermore,

Crockett does not complain about the jurors who actually

decided the case and thus has failed to establish that he had an

insufficient number of peremptory challenges to remove all

of the jurors that he wished. Crockett suggests that it was

necessary for the district court to have explicitly determined

that Crockett would not have used his final peremptory

challenge for a noncurative purpose, yet he does not cite any

law in support of this proposition.

E. Prosecutorial Misconduct

Crockett contends that he is entitled to a new trial because

of prosecutorial misconduct. In particular, Crockett points to

a great many comments (seventy in total) made by the

prosecutor during his closing argument, which Crockett

considers to constitute improper vouching for government

witnesses, improper testimony, improper commenting on

Crockett’s failure to take the stand, misrepresentations of

evidence, bolstering of witnesses, and improper attacking of

Crockett’s legal counsel. Although some of the prosecutor’s
Nos. 00-3617/3618/3741 United States v.

Beverly, et al.

41

statements are cause for concern, ultimately it does not appear

that the prosecutor’s behavior amounts to reversible error. 

Although Crockett lists a myriad of allegedly improper

statements in his brief, his only objections at trial to the

prosecutor’s closing argument attacked the following

statements:

And if you listen to the defense counsel, Agent

Trombitas has now become a co-conspirator along with

Mr. Rogers and Mr. Warren because he gave them

information and set them up, things that they could tell.

Not only is Agent Trombitas an agent, but he’s become

a co-conspirator here by giving them information that

they can do. . . . Ladies and gentlemen, why Mr.

Crockett did what he did, only he can answer. 

And if either one of them [prosecution witnesses] get

caught in a lie, they face the possibility of losing their

plea agreement and doing the rest of their life in prison.

Therefore, with the exception of these statements, which we

review de novo, we review Crockett’s objections for plain

error. See United States v. Jackson-Randolph, 282 F.3d 369,

384 (6th Cir. 2002); United States v. Modena, 302 F.3d 626,

634 (6th Cir. 2002).

We review allegations of prosecutorial misconduct under a

two-step process. First we decide if the statement was

improper; if the answer to that question is yes, we must

consider whether the statement was “flagrant.” United States

v. Francis, 170 F.3d 546, 549 (6th Cir. 1999). To determine

if the statements here reaches that level, effectively rendering

Crockett’s trial fundamentally unfair, this court considers the

following factors: 1) whether the remarks tended to mislead

the jury or to prejudice the accused; 2) whether the remarks

were isolated or extensive; 3) whether the remarks were

deliberately or accidentally placed before the jury; and 4) the

42 United States v.

Beverly, et al.

Nos. 00-3617/3618/3741

overall strength of the evidence against the accused. United

States v. Green, 305 F.3d 422, 429-30 (6th Cir. 2002);

Francis, 170 F.3d at 549-50 (citing United States v. Monus,

128 F.3d 376, 394 (6th Cir. 1997)). In examining

prosecutorial misconduct, it is necessary to view the conduct

at issue within the context of the trial as a whole. See United

States v. Young, 470 U.S. 1, 12 (1985) (holding that it is

critical to examine the statements at issue within the context

of the entire record); Francis, 170 F.3d at 552 (noting that

the determination of whether a prosecutor’s behavior

constitutes prejudicial error must be made in the context of

the whole trial). The district court overruled Crockett’s

objections with respect to the statements that appear above.

Crockett objects to the statement “why Mr. Crockett did what

he did, only he can answer,” as an impermissible comment on

his failure to testify. However, when viewed in context, that

does not appear to have been the intent of the prosecutor’s

statement. The sentences around the statement help to put it

into perspective:

We found another interesting concept of the law is if you

don’t run, you are not guilty. Ladies and gentlemen, why

Mr. Crockett did what he did, only he can answer. But

he figured probably he didn’t get arrested in ‘95 or ‘96,

so he was okay, that these guys haven’t snitched on him.

It appears that the prosecutor was responding to defense

counsel’s characterization that “the government says this man

robbed four banks, he stuck around Columbus for five years,

he waited as his buddies . . . made deals, ignored Trombitas’s

offer and then counted on twelve white folks to set him free.”

It was completely proper for the prosecutor to counter defense

counsel’s seemingly plausible theory that Crockett would not

have stayed in the area, had he actually been guilty of the

robberies.

From the trial transcript, we can infer that Crockett’s

attorney objected to the comment about Agent Trombitas
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43

because he felt it was an unfair characterization of his

argument to the jury. This comment is simply a rhetorical,

albeit somewhat florid, argument that the testimony of Agent

Trombitas could only be discounted if the jury believed that

he was in fact conspiring with the prosecution witnesses by

providing them with information that they otherwise only

could have known if Crockett had indeed been conspiring

with them. This is certainly a possible inference from the

defense argument, and there was no impropriety in the

prosecutor’s rhetorical means of countering it. See Green,

305 F.3d at 430 (stating that rhetorical questions are

permissible).

The final complaint is somewhat more valid. No evidence

had been introduced demonstrating that if Rogers and Warren

were shown to be lying that they could spend “the rest of their

life in prison.” Both had testified that they had a plea

agreement, which required them to testify truthfully. The jury

could certainly infer that there would be the potential for

serious consequences if the witnesses lied, but the prosecutor

technically went beyond what had been presented as evidence

by stating they would go to prison for life. However, the

remark does not meet the standards for reversal set out in

Green. The remark did not mislead the jury, nor prejudice the

accused. It was an isolated, extravagant remark that asserted

slightly more than could be supported in the record. Finally,

in the case of Crockett, who is the only defendant who

objected to this particular remark, the evidence of his guilt

was indeed overwhelming, including in particular the

damning photograph, as well as the consistent testimony of

Rogers and Warren, which the jury accepted with respect to

each of the defendants. Considering all of these factors, we

cannot say that this prosecutorial conduct constituted

reversible error.

We review the remaining sixty-eight comments for plain

error. See Young, 470 U.S. at 14, 16 (1985) (holding that

although the prosecutor had made improper statements

44 United States v.

Beverly, et al.

Nos. 00-3617/3618/3741

amounting to error, the error was not reversible under plainerror review since “[v]iewed in context, the prosecutor’s

statements . . . were not such as to undermine the fundamental

fairness of the trial and contribute to a miscarriage of

justice”). None of the remaining comments could be

characterized as misconduct that “so infected the trial with

unfairness as to make the resulting conviction a denial of due

process.” Hill v. Brigano, 199 F.3d 833, 847 (6th Cir. 1999).

This claim is without merit. 

VIII

For the reasons given above, we AFFIRM the convictions

of Crockett, Beverly, and Turns.