* The Honorable Robert H. Bell , Chief United States Distri ct Judge for the Western District of Michigan, s itti ng by designation.
1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

th Circuit Rul e 206

ELECTRO NIC CIT

ATION: 2004 FED App . 0136P (6th C ir.) File Name: 04a01 36p.06



### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________
U NITED S TAT ES OF A MERICA ,

Plaintiff-Appellee,

v.

N OAH B EVERLY (00-3617); J OHNNY P. C ROCKETT (00-3618 ); D OUGLA S A. T URNS (00-3741), Defenda nts-Appe llants. X - - - -
> , - - - - - - N 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; NORRI S, Circuit Judge;

and BELL , Chief District Judge. * 2 United States v. Beverly , et al. Nos. 00-3617/3618/3741

_________________ COUNSEL

ARGUED: Richard A. Cline, MITCHEL L, AL LEN, CATAL ANO & B ODA, Colum

bus, Ohio, Kevin P. Durkin, TAYL OR& DURKI

N, Columbus , Ohio, Ga

ry W. Deeds, Columbus, Ohio, fo rAppellan ts. J. Michae l Marous, AS SIS TAN T UNI TED STATE S ATTORNE Y, Columbus
, Ohio, for Appellee. ON BRI EF: Richard A. Cline, MITC HELL, ALL

EN, CATAL

ANO & B ODA, Colum

bus, Ohio, Kevin P. Durkin, TA YLOR & DURKI

N, Co lumb us, Ohi o, Gary W. D eeds, Col umbus, Ohi o, for Ap

pellants. J. Michael

Marous, D avid

J. Bosley, ASSI STANT UNITED STATES ATTORNEY, Columbus, Ohio, for Appellee.

_________________ OPINION

_________________ B OGGS, Chief Judge. Noah Beverly, Douglas A. Tur ns , and Johnny P. Crockett were indicted for multiple crimes by
a f ederal grand jury

, charging them with conspiracy t o commit armed bank rob bery , in violati on of 18 U. S.C. § 371, committing various a

rmed ban k robber ies, in violation of 18 U.S.C. § 2113(a) and

(d), and possessing firearms during a nd i n relation to these crimes of violence, in violation of 1 8 U.S.C. § 924(c). After two eviden tiar y hearing s, a jury trial commenced

inwhich all three defendants were tried together. On February

8, 2000, the jury returne d a verdict of guilty on all counts ag ainst B everl y and Turns. Crocke tt was found guilty of conspiracy

to commit armed bank robbery , of robbing Security National B ank, and the Park National Bank inHebron, Ohio, a nd of using a firearm in commission of those crimes, b

ut was fou

nd not gu il ty of robbing two other banks with

another defenda nt not invol

ved in this

appeal.Nos. 00-3617/3618/3741 United States v. Beverly , et al. 3

All three defendants have a ppealed this verd ict. Bev erly appeal s the introduction of mitochondrial DNA (mtDNA) evidence against him at trial, arguing that the evidence was notscientifically re liable and, even i f reli able, its probative value was outweighed by its prej udicial effect. In a ddition, Bever ly joins the other de fenda nts in bringing a Batson challenge, arguing that the district court committed

clear error when it granted the governmen t’s peremp tory chal lenge agains tanAfrican-American who could have been seated on the jury panel. Turns

appeals the distri ct court ’s decis ion to join his trial with the other two defendants, and further arg ues that the district court abused its discretion i n deny ing his Rule 14 motion to sever

his trial. Turns also contends that the districtcourt abused its discretion in limiting his examination of a gove rnment wi

tness, tha t the distr ict cour t erred in its denial of his motion for acquittal, and that his sentence of seventy-one

and on e half years , large ly man dated by the requirement

of conse cutive se

nte ncing under 18 U.S.C. § 924(c)( 1)(D)( ii), is cr uel and un

usual puni shment in violati on of the Eigh

th Amendme

nt. Crock

ett appe als his
c onvi ction on the basis of prosecutorial misconduct and argues that the district

court erred in its denial of his motion for acquitta l. Inaddition, Crockett contends that the district
cour tabused it s discretion in fai ling to excuse a pot entia l juror fo r c au se , i n a dm it ti ng te st im on y regar ding his wife’s pretrial identification of him in a bank surv eillance

photo, in admitting into evidence his failur e to file i ncome ta x returns, and in li miti ng hi s examination of a government witness’s probationofficer. For thereasons set forth below, we affirm the defe ndants’ c onviction s.

I
This case is a

bout a series of bank robberies that occurred inOhio 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

Lave lle Roge

rs and his

half-br other Me lvin Warren , Jr.. In each of

the se ven ro bberi es, ei ther R oge rs , Warren, or both, pa

rticipat ed in the e

vent and s o testifie d to what occurr ed. Neither Roge

rs nor War

ren are defenda nts in this c ase because they

both entered into a plea agree ment as part of a guilty

plea to armed bank robbery

.

Delaware County Ban k and Trust According

to Rogers’s testimony

at trial, on September

26, 1994, Rogers and Turns stole a Chevrol et B lazer fr om a trucking company and r

obbed the DelawareCounty Bank and Trust in Ashley

, Ohio on th e foll o wing day . Turns waited outside, feigni

ng mechanical problems, while Rog ers, having borrowed Turns’s gun, went inside and robbed the bank. Rogers carrie d a silv e r pistol provided by Turns. After the
ro bb er y, the two drove to Columbus, Ohio where Tur ns ’s sister, Starla Turns, had a house. Rogers claimed he gave Turns $5,000 of the more than $70,00 0 he to ok from the vault. Rogers was dating Starla and he was planni ng o n leaving for Disney World with h er the ne

xt day , so that night Rogers rented a hotel room near the Columbus airport. When Rogers realized that it would unwise to attemptto take the gun on the airplane, he s poke with

Turns ab out what h e should do with it. Turns ap

parentl y su gges ted that R

og ers lea

ve it underne ath

the bushe s near th e hotel, w here Tu rns could later
recover i t. Turns ha s a diffe

rent version. Acc ording t o th e testimony of FBI Agent

Harry Trombitas, Turns told him that he, Turns, had fou

nd the gunin his car after having lent the vehicle to Ro gers. Turns then informed Age nt Trombitas about the wea pon, and s t ashed

it under s ome bushe s by

this same hotel while waiting for theFBI to come a nd pick it up. InFlorida , while vis iting Disney World, Rog ers and St

arlaNos. 00-3617/3618/3741 United States v. Beverly , et al. 5

used various f

orms of fa

lse identi ficati on, which were allege dly provided to them by

Turns.
Within ten day s o f the robbery , Lisa Dennis, Turns’s girlfriend, made two round-number cash deposits to her bank
accoun t. The firs tde po si t, ma de tw o d ays af te r t he ro bb er y, 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 tha t would explain these deposits. Turns ’s e ntire inc ome durin g this period was apparently

derived from unem

ploy ment bene fits and hi s gi rlfriend, Dennis, was only receiving gener

al 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 wa s $72,500. T urns implic ated Rog ers, describinghis disguise and noting that he had seen

Rogers in a white Ch evrolet

Blazer w ith Kentuc

ky l icense p lates.

Park Natio nal Bank in

Kirkersv ille, Ohio

InDecember 1994, Rogers, his half-brot her Melvin Warr en, and Turns drove Warren’s burgundy Cadillac to a Meijer shoppin g center in Columbus, Ohio, where Rogers stole a c ar. The

theft wa s recor

ded by surveilla nce cameras. Tur ns, Rogers, and Warren drove to Kirkersville, Ohio. Rogers and

Warren then took

the stolen car and drove to the bank, while Tur

ns waited with Warren’ s Cadillac

at a nearby fre eway on-ramp . Again , Turns fe igned me chanica l problem s while Rogers and Warren ro bbedthe Park National Bank, with Rogers using a g un he had gotten f rom Turns. Warren used a gun o btained from Beverly . After robbing the bank, Rogers and Warren

drove the stolen car to the freewayonramp where they

shifted in to the Cadi llac with

Turns. Warren, 6 United States v. Beverly , et al. Nos. 00-3617/3618/3741

di rected by Turns, drove to Tur

ns’s brother’s house, w

her e the thre e counte d their ta

ke and div

ided it into

thirds.

Several weeks after the robbery , Warren and Rogers were stopped b y the police and Rog ers used Turns’s driver’s license as identification. Though Rogers was re leased, a gun was recovered from the car and Warren was arrested. The ownersh ip of the gun was traced back to Tu rns, who had purchased the weapon on Septembe

r 9, 1993. This gun was allege dly provided to Rogers by

Tu rn s prior to the Park National Bank robbery

. Eight months after the De ce mb er 30 , 1 99 4 r ob be ry, Turns st ated to the FBI that he ha

d been at the aforem entione d shopping center

with the Me ijer st ore that day with his brother and had happened to see Warren and Rog ers there. Turns stated that Warren andRogers told him details about the robb ery later

in the day, including

the fact that they

had taken approxima

tely $35,000. The actual amount stolen was $31,377.

National City Bank

Another bank robber

y oc curred five months later, on May 12, 1995, involving Warren, Beverly
, and a t hird man named Colby. Warren testified that while the thre e of them
were drinking at Beve

rly ’s house

they decide d to rob a bank. Warren, Bev erly , and Colby parked a t a near by a uto-par ts store and walked into the National City Bank on Lockbourne Road in Co lu mb us . O nc e i n t he ba nk , t he y began shouting for everyone to put thei r hands up. Be ver ly carr ied a
rev ol ver . Th e ro bbe ry ne tt ed $ 3,4 28. It was filmed by bank surveillance camera s. Warren identified Beverly as one of the robbers in the sur veillanc e photog

raphs shown at tria

l.Nos. 00-3617/3618/3741 United States v. Beverly , et al. 7

Security National Bank

OnMay 18, 1995, Warren, Rogers, Beverly , and Crockett robbed the Security National

Bank in Springfield, Ohio. The four met before the robbe ry at B everly’ s apartment, where they prepared d isgui ses, incl uding ma sks and ba

ndannas

. They t hen dro ve together to Springfield in Warren’s tan Linc oln Town Car . Once in

Spr ingfield, the four drove to a hospital, where Rogers stole a car to use as a getaway

vehicle inthe robbery . They found a n al ley behin d som e buil dings
acrossthe st

reet from the bank, where they parked the Lincoln. Ro ge rs , W ar re n, Be ve rl y, and Crockett entered the bank and Crockett, wea

ring a p air of panty hose over his head, jumped over the teller’s cou

nter and ordered people to the floor. After

robbing the bank, the four used the s tolen ca

r to get to the alley whe

re the tan L

incoln wa s parked . They all left their disguises in the stolen car, which was later recovered by the police. The f

our escaped with $10,538.47. During the robbe

ry , bank sur

veilla n ce cameras were working and took sev eral photograph s. Bo th Wa rren and Rogers were ab l e to ident ify each other, as w ell as Be verly andCr ockett, in the photos. The government contends tha t Beverly ’s pose, disguise, choice of weapon, and use of his left hand is almost identical in t he Ma y 18 and the May 12 robbery photos, and that Beverly ’s revolve r, which appears in the pictures, had

the same characteristics as the g un recovered after the Novem ber 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” h at with holes cut in it as a mask. This hat was later recovered from theabandoned stolen car. I t was a hair from this hat that was sent to the lab for the mitochondrial DNA test that w as ultimat

ely admitted i

nto evide nce at tr ial. On July 24, 1995, t

wo 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

OnJul y 28, 1 995, Rog ers, War ren and T

urns drov e to Zanes ville in Turns’s BMW. Once in Zanes ville, t he three drove to a gro cery

store whe

re Roge rs stole a Buick to use as a get-away vehicle. Rogers and Warren took the stolen

car to the bank, while Turns dr ove to a nearbyschool, their prearranged meeting place, and wait ed. Rogers and Warren entered the bank, both armed. After getting the money, they returned to Tu rns’ s car an

d drove b ack to Colu

mbus 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 al legedl y stopped. In addition, a local r esident s potted the BMW near the school during the relevant time period. She identified the make and model, which mat ched a car that Turns had purchased

on May 26, 1995 in Fra nklin County, Ohio for $5,450.

Onthe day bef

ore the robbery , the balance of t he bank
accoun ts of Lisa Den

ni s, Turns’s girlfriend, totaled $24.34. However, her account later showed a d ep os it ma de th re e d ays after the First National Bank robbery of exactly $1,000. Two da ys 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. Nei the r Turns nor Dennis filed tax returns in 1994 or 1995.

Inthe summer of 1995, Turns and his brother went to a gun show with Roge

rs. They purchas ed sever

al w eap ons there.Nos. 00-3617/3618/3741 United States v. Beverly , et al. 9

Rogers testifie d to the fa

ct it was their co llective

intention t

o use these weapons in future robberies.

Huntington National Bank Only six days after robbing

the First National Bank, on August 3, 1995, Rogers, Turns, a nd Wa rren robbed the Huntington

National Bank in Mary sville, Ohio. Turns drove them to Mary sville in his BMW. Contrary to their usual practice, they did not

steal a car to use as a get-a way vehic le, butinstead 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 wen t to a p re-arra nge d plac e where they were to meet after the robbery. Rog ers and Warren robbed thebank, stole a vehicle, and met

Turns at the pre-arrange d spot. They aba ndoned

the stolen

vehicle and drov e back to

Colu mbu s with their take of $79,500.

After the Huntington Nationa l Ba nk robbery the re were more round-nu

mber dep osits made

to Lisa Dennis’s accoun

t. Again, Turns descri bed the robbe ry to the FB I in d etail, without me

ntioning his involve

ment.

Park Natio nal Bank in

Hebron, O

hio

OnNovemb er 22, 1995, in Hebron, Ohio, Crockett and Warren robbed the Park National Bank. Crockett and Warre n both had guns when t hey enter ed the bank and both were wearing disguises. Warren identified both himself and Crockett in the bank surveillance video. After find ing dy e packs in some of the m on ey they had take n, Crockett began throwing the dy

e packs a t the bank

employ ees, who w ere 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 doo r openfor Warren to come out of the bank, a car pulled into the bank parkinglot. Crockett panicked and pulled away , leaving Warren without a means of escape. When Warren emerg ed fromthe bank and realized that Crocke tt had lef t, he stole a Cadillac.

The chief of

police saw the Cadillac pulling away from the bank and left in pursuit, but he ended up losingWarren in the
car chase. Eventually , the stolen Cadillac was recovered. Inside the car, the police found some of the money st ole n fromthe bank

and a .22-caliber revolver. The revolver turned outto be the same type of gun used by Be

verly in the May

12 and May 18 robber

ies. The police later recovered a .38- caliber bullet from the gun fired by Crockett at the t eller s in the bank. Rogers andWarren w ere tak en into cu stody

by t he FBI in August and Dec ember of

1995, re spective ly, partiall y a s a result of information given to FBI Agent Trombitas by

Turns. Rogers and Warr

en even tually coo per ate d wi th th e FB I, and ultimately

Turns , Bev erly, and Croc kett were indicted on July 20, 1999 and charged with conspiracy to commit armed bank ro bb er y, committing various armed bank robberies, and for the p ossession

of firea rms during

and in re lation to these crimes of violence.

II
The three de fendant s raise ma n y is sues, whi ch we wil l consider inthe following order. All three defenda nts join in the Batson challenge, so we will deal with i t f irst in Par t III. We then turn to the novel issu e of Bev erly’s cha llenge to the admissibil ity

of mitochondrial DN A e vidence in Part IV. Turns and Crockett eac

h appea l the deni al of the ir separ ate motions for acquittal, and these issues are dealt with i nNos. 00-3617/3618/3741 United States v. Beverly , et al. 11

Part V. Turns r

aises three issues peculiar to his trial and sentence, which we de al with in Par t VI. Finally

, Crockett raises a number of evidentiary issu es and a claim of pro sec ut ori al m is con duc t, whi ch w e ad dre ss in Par t VII.

III Batson Challenge

Be ve rl y, Crockett , and Tur ns clai m that the prosecutor exercised a peremptory

challen ge ag ainst a po tential ju

ror in
a ra ci al ly disc riminatory manner, in violation of the Equa l ProtectionCl ause. See Batson v. Kentucky , 476 U.S. 79 (1986) (prohibi

t ing the exercise of race-based per emptory 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 witho

ut M rs. McKeever, there would not be any African-Americans on the jury. The prose cutor stated that he
was using a peremptory

challen ge to re move Mrs. McKeever because she had a

brother who had sp en t time in prison and also had a ne

phew in ja

il with whom she still hadcontact. The districtcourt found that the Government had articulated a le gitimate nondiscriminatory rea son for the challenge and permitted Mrs. McKeever’s removal.

A Batso n claim

is analyzed in three steps. F irst, the defendant mu st ma ke a prima facie showing that the prosecutor

removed a potential juror f o r a discriminatory
reason. If the defenda

ntmakes this showing, the second step requires the prosecutor to articulate a nondiscriminatory
reason for th e remov al. As sumi ng that the prosecutor does so, the third step requires the trial court to determine whether the opponent

of the peremptory

strike has proven purposeful di scrimination. See, e.g., United States v. Lucas , 357 F.3 d 599, 609 (6th Cir. 2004). 12 United States v. Beverly , et al. Nos. 00-3617/3618/3741

In reviewi n g the government’s rac e-neutral explanation
, w e need not find th at the re ason giv en is persua sive, or even plausi ble. Ibid . Howeve r, the re ason can

not be inhe

rently discriminatory. Ibid . Furthermore, the district court has the resp onsibility

to assess the prose cutor’s

credibi lity

under al l of the pertinent circumstances, including the final make- up of the jury. We review tha

tdetermination

of fact for clear error

. United States v. Bartholomew , 310 F.3d 912 , 919 (6 th Cir. 2002). In thi s case, t

he prose cutor g ave a pla

usibleand

raceneutral explanat io n for ex ercis ing a pe rempt ory chall enge aga inst M rs. McKeever, which the district court acc epted. There was no evidence of discriminatory intent inhe

rent in the government’s proffered explanation, and a peremptory chall enge is not unco nst itutional s olely because it has a raciall y disproportionate impact. Hernande z v. New York

, 500 U.S. 352, 359-60 (1991). Under these circumstances, the di strict court did n ot com mit c lear er ror in overru ling t h e Batson challenge.

IV Admissibility of Mitochondrial DNA Testing

Be ve rl y, against whom mitochondrial deoxyribonu c leic acid (mtDNA) testingw as used in this trial, argues that the districtcourt erred in admitting expert testimony concerning mtDNA evidence. Specifically, B everly a rgues that mtDNA testing is not scie

ntifical ly reliable because thelaboratory tha t did the t esting in this case was not certified by an externa l age nc y, the proc edures u sed by the labor

atory “sometime s yielded results that were contaminated ,” an d the particular tests d one in this case were contaminated. I n addition, Bever ly argues that even if the mtDNA evi dence is determined

to be suff

iciently reliable , its proba

tive value is substantia lly outweig hed by its prejudicial effect. In this part of his argument, Beverly

focuses on the statistical anal ysi sNos. 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

evid enc e. According to Be ve rl y, Dr. Melton, the government’s expert, should onl y have been allowed to testify that Beverly

could not be excluded as the source of the sample in question.

We rev iew th e district court’s decision to admit expert testimony for an a buse of discretion. Kumho Tire Co. v. Carmichael
, 526 U.S.13 7,152 (19 99); First Tenn. Bank Nat. Ass’n v. Barreto , 268 F.3d 319, 331 (6th Cir. 2001).

FederalRule of Evidence 7 02 sets forth the re quireme nts for the a dmissibility

of expert testimony

as follow s:
If scientific, technical, or o t her sp ecial ized knowl edge will assist the trier of fact to understand the evidence or to determine a fac t in issue, a witness q ualified as an expertby knowledg e, skill, experience, tra in ing, or education, may

testi fy thereto in the form of an opinion
or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) thetestimony is the produ

ct of re liable principles and methods, and (3) the witness has ap p lied the principle s and methods relia bly to th e facts of the
case.
The wording of the rule reflects the now- standard inquiry set out i n 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 C

o. , 243 F.3d 244, 250 n.4 (6th Cir. ), cert. denied , 534 U.S. 822 (2001). T herefore, we r

eview thi s caseunder Daubert
, which set forth a n on-exclus ive chec

klist of fact ors for tr ial cour ts to use in assessing the reliability of scientif ic expert testimony. These include 1 ) whe ther 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 st andards and controls; and 5) whether the technique or theory

has been genera

ll y accepted in the scientif ic community. Daubert, 509 U.S. a t 592- 95; Hardyman v. Norfolk & W . Ry. , 243 F.3 d 255, 2 60 (6th Cir. 2001). If th e eviden

ce is dee med to be r

eliable a nd relev ant, 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 ma y be helpful to provide some general background concerning

mtDNA ana

lys is. Gene

rally speaking , every

cell contains two types of

DNA: nuclear DNA, which is found in the nucleus o f the ce ll, and mito chondria l DNA, whi ch is found outside of the nucleus in the mitoch ondrion. T he use of nuclear DNA ana

lys is as a fo rensic to ol has bee n found to be scientif

ically reliable by the scientific c ommunity for more thana decade. The use o f mtDNA a naly sis is also on the rise, and it has bee n used exte

nsively for some time in FB I lab s, as well as stat e and private crime labs. See, e.g., Micah A. Luf tig & Stephen Richey
, Symposium: Serenity Now or Insanity Later?: The Impac t of Post-Co nvictionDNA Testing

o n the Crimina l Justice

System: Panel One : The Powe r o f DNA , 35 New Eng. L. Rev. 609, 611 (2001). This technique, whichgenerally

looks at the differences between people’ s mitochondrial DNA, has some advantages over nuc lear DNA
a nal ysi s in certain situations. For example, while any given cell contains only one nucleus, the re are a vast number of mitochondria. As a resul t, there is a significantly g reater
am ountof mtDNA in a cell from which a sample can b e extracted by a la b tec hnician, as compared to nuclear DNA. Thus, this techn

ique is v ery

use ful for minute samples or ancientand deg

raded sa

mples. Ibi d . In addition
, mitochondrial DNA can be obtained from some sources that nuclear DNA cannot. For example, mtDNA can befound in shafts o f h air, which do not have a nucleus, but do haveNos. 00-3617/3618/3741 United States v. Beverly , et al. 15

plenty of mitochondria. Nuc lear DNA can only

be retrieved fromthe living

root of the h air wher

e the nuc leus res ides. United States v. Coleman
, 20 2 F. Supp. 2d 962, 965 (E.D. Mo. 2002) (acceptin g expert testimony by Dr. Melton, the expertin this case, and admitting evidence based on mtDNA testing).

Onthe other

hand, mtD

NA is not a s precis e an identifier as nuclear D N A. In the case of nuc lear DNA, half is inherited fromthe mother

and half from the f

ather, a nd each individua l, with the excep tion of ide

ntical twins, almost

certain ly h as a unique profile. MtDNA, by contrast, is inherited only from the mother and thus all mater nal rela tives will share th e same mtDNA profile, unless a mutation has occu rred. Ibid

. Becau se it

is no t pos sibl e to ach ieve t he ex treme ly high level of certainty of

identity provided b y nuc lear 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 sixtee n thousand

base pairs, is considerably shorter tha n nuclear DNA, which has approxima

tely th ree bil lion pairs. Within the mtDNA, two noncoding regions are targeted – Hy pervariable-1 (HV1) and Hyperva riable-2 (HV2). Each of

these regi ons is about 300 letters i n code le ngth and is a reg

ion that ha s a mutation rate five to t en times g

reater than that of nucle ar DNA. Usually there is a one to two percent variance of mtDNA sequence between unrelated individuals. Luftig & Ric hey
, supra , at 612. It has been estimated that mutation within the mtDNA control region is one nucleotide difference every 300 gener ations. National

Co mmis sion on the Future of DNA Evidence, The Future

of Forensic DNA Testing: Predictions of the Rese arch a nd Development Work ing Group 7 , Nat’l Inst. of Justice (2000). But see Ann Gibbo ns, Calibrating the Mitochondrial

Clock , 279 Scie

nce 28 (1 998) (dis cuss i ng resea rch es timating that mutations occur as frequently as every 40 gener ations). This aca

demic dispute does not affect this case directly

. Ingeneral, the slower the mutation rate, the 16 United States v. Beverly , et al. Nos. 00-3617/3618/3741

more people who will have th e same mtDNA pattern, and vice-versa. However the figures prese nted to the jury wer

e froma database of actual DNA patterns collecte d by

forensi c scientists. The mechanics of the analysis involves a process similar to that used with nuclear D NA. Coleman , 202 F. Supp.2d at 969.

This court has not

until now ha

d the opportunity

to rule on the admissibility of mtDNA testi ng. However, mtDNA testing has been admitted into evidence by s everal state courts and has been upheld on re view. See, e.g., State v. Underwood
, 518 S.E.2d 23 1 (N.C . Ct. App. 1 999); State v. Scott , 33 S.W .3d 74 6 (Tenn. 2000); State v. Co uncil , 515 S.E.2d508 (S.C. 19 99); People v. Klinger , 713 N.Y. S. 2d 823 (N.Y. Crim. Ct. 200 0); Williams v. Maryland
, 679 A.2d

1106 (Md. 1996).

2. Mitochondrial DNA in this Case

The districtcourt in

this case held a very

extensive hearing inorder to determine the admissibility of mtDNA evidence at trial

. The court determined that the techniques had been established

and acc epted by

the scie

ntific commun it y, accepted by the courts, and ha

d been subject to peer review. Bever ly now arg

ues that the dist

ri ct court

abused it s discreti on on the b asis of thr ee objec tions.

Bever ly argues that Dr. Melton’ s lab oratory, whic h had analy zed the sa mple in this case, has never been certified by
anexternal a

gency . This point

was rais e d in t he pretrial hearin g, and, although there is no legal requir ement that Dr. Melton’s lab be so certified, the district court did question Dr

. Melton on this point. Laboratories doing DNA for e nsi c work a re accredited

through the Amer

ican Soci ety

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 t hrough the process theNos. 00-3617/3618/3741 United States v. Beverly , et al. 17

following spring. Furthermore, Dr. Melton’sowncreden tials
are co ns iderabl e. Not onl y ha s she bee

n working

with mtDNA since 1991, she has a Ph.D fr om Pennsy

lvania State Universi ty in geneti cs; 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 proc edures wou ld
s ometimes yield results that were contaminated, an d tha t furthermore, the sample analyzed in this particular cas e w as contaminated. Testimony given by Dr . Melt on and Dr. Kessis, who w as Beverly ’s expert at trial, supported Beverly ’s general contention
, but no evidence demonstrated that any contamination in thi s case affected the results of the analy sis. Dr. Melton tes tified that “[we] occasionally have what we call sporadic contamination,” probably as a result of residue on a piece of

equi pment brought into the lab. However, Dr. Melton was confident that no contaminationof 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 reag ent blank, used in
a differe nt tes t tube, wh

ich was a control in

the exper

iment. Therefore, the actual data relied upon in this ca se, ob tained fromthe seque

ncing ma chine, di d not indi cate any presence of a cont aminant.

Fi na ll y, the district court ca refu lly considered during the pretrial hearing

the questionof wheth er the r elevanc e of this evidence out wei ghe d i ts pro bat iv e va lu e. In p articular, Bever ly argued that the jury

would associate mitochondrial DNA analysis with nuclea r DNA analy sis and give it the
same value, in term s of its abi lity to “fing erprint”

a suspect. The district court, however, decided that this issue was more appropr iately dealt wit

h throug

h a vigo rous cro ssexamination, and in fact that was ex ac tl y w hat occurred at trial. Moreover, the court noted the important probative value that t his e vidence added to the trial. Finally , the court 18 United States v. Beverly , et al. Nos. 00-3617/3618/3741

separa tely considered the scientif

ic relia bility of the statistical analy sis offer ed by the gov ernment , conclud ing that :
The predictive effect of the statistical analy sis is bas e d upon a formula

which isappar ently recog nized in the scientif ic c ommun ity a

nd used in a

variety of scien tific contexts, and it has been used specifical ly he re in the analy sis of mitochondrial DNA results. The Court concludes that it’s an accepted and r eliable estimate of pr ob ab il it y, and in

this case , it led to r

esults, interpreted results, whichsubstantially increase the probability that the hair sample is the hair of the defendant in this case.

Based on the record compiled in the districtcourt’s careful and extensive

hearing on this issue , there was no abu se o f discretionin adm itti ng t he mtDNA testing results. The scientifi c b asis for the use of such DNA is well established. Any issu es go ing to the conduct o f the spe cific te sts in question were fully

developed and

s ubject to

cross e xamination. There was no error in finding that the t estin g methods, a nd Dr. Melton’s testing in particular, were suffi ci ently

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 ty pe of evidence
c ould not identify individuals with the precision o f conventional DNA ana

lys is. Neve

rtheless , a ny particular mtDNA pattern is sufficiently r ar e , especi ally

when the re is
no co ntention that the real culprit might have been a matrilineal relative of the de fendant
, that it certainly meets the standard for probative evidence: “any tendency to make the existence of any fa

ct that is of

consequence to the determination

of the action more p robable or le ss probab le t hanit would be without the evidence.” Fed. R. Evid. 4 01

. The statistical evidence at trial showed that, at most, less than 1% of the popula

tion would b e expecte d to have t his mtDNANos. 00-3617/3618/3741 United States v. Beverly , et al. 19

pattern. Even an article critical of mtDNA st ated the most frequent pattern applies in no more than 3% of the population. Eric a Beecher-Monas, The Heuri stics of In tellectu al D u e Process: A Pri mer for

Triers of Science , 75 N.Y.U.L. Rev. 1563 , 1655 n .53 5 (2 000 ). It would be unlikely to find a matchbetween Beverly ’s hair and the hair of a random individua l. Th e t es ti mo ny w as tha t, 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 ha ir recovered fromth e b an k r ob be ry site, and that Beverly did have the
same pattern, and thus could not be excluded as the source of the hair. Fi

nding B everly ’s mtDNA a t t he crime sc ene is essentia lly equivalent to fi nding tha t the last two digits of a license plate of a car owned by

defenda nt mat ched the

last two numbers of

a license plate of a

getaway car. It would be
s ome evidence — not conclusive, but certainly admissible. We find the same here.

V

Motion for Acquittal During the trial, at the close of the government’scase and again at the close of all evidence, both Tu rns a nd Crocke

tt made a Rule 29(a) motion for acqui ttal . On both occasions t he d istrict c ourt deni ed their motions, a

nd both de fendant s now appeal that decision.

T he r elevant

question i

n assessi ng a ch alleng e to evidentiary

sufficiency

is “whether, after viewing the evidence in the ligh t most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime bey

ond a reasonable doubt.” Jackson v. Virgini a , 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 compe tent, 20 United States v. Beverly , et al. Nos. 00-3617/3618/3741

may sustain a conviction under thi s de ferential standard of review.” United

States v. Adams , 265 F.3d 420, 423 (6th Cir. 2001) (citations omitted).

1. Crocke

tt
Crockett contends that there is insufficient evidence in the record to establi sh that he

was involv ed in a conspiracy to commit bank rob

beries a s set f

orth in Count One of the indictmen t. To establish a conspiracy , in violation of 18 U.S.C. § 371, t he government must prove bey ond a
reasona ble doubt that there was “an agree ment between two
or more persons to act together in committing an offense, and
anovert act in furtherance of the conspira cy.” United States

v. Crossley , 224 F.3d 847, 856 (6t h 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, whichrequires the government to prove t h at: “1) the conspiracy

described in the indictment was wilful ly [s ic] formed, and

was existing at or about the time alleged; 2) the accused willfully [sic] be ca me a m em be r o f t he co ns pi ra cy; 3) one of the conspirators thereafter knowingly committed at least on e overt act charged in the indictment a t or about the time and place alleged; and 4) that overtact was k

nowingl y done in furtherance o f some object or purpose of the conspiracy

as charged.” Uni ted Stat es v. Kraig , 99 F.3d 1361, 1368 (6th Cir. 1996). The government need not show
a formal w ritten ag reemen t; a simple understandingbetween t he parti es 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 particip ant in every pha se of the conspiracy .” Un ited States v. Christian , 786 F.2d 203, 211 (6th Cir. 1986) (quot ing United States v. Cuni , 689 F.2d 1353, 1356 (11 th Cir. 1982 )). The d efenda nt need on

ly “kn ow of

the conspiracy , associate himself with it and knowing ly

contribute his efforts in i ts furtherance.” United States v. Barger , 931 F.2d 359, 369 ( 6th

Cir. 1990) (quoting United States v. Luxenbe

rg , 374 F.2d 241, 250 ( 6th Cir.Nos. 00-3617/3618/3741 United States v. Beverly , et al. 21

19 67 )). “A conspiracy

may be infer

red from circumstantial evidence that can reasonably be interpreted

as partic ipation in the common plan.” Ibid . (quot ing United States v. Strong
, 702 F.2d 97 (6th Cir. 1983)).

The government presented a considera ble amount of evidence establishing Crockett’s active participation in the
co ns pi ra cy, parti cularl y through the testimony of Roger s and Warren. For example, bo t h Roger s and Warr en testif ied to Crockett’s particip ation in the robbery at the Sec

urity National Bank, specifically descri bin g his par

ticipation in creating disguises used during

the robbery a

nd in conducting the robbery

itself. I

n addition , there w as photog raphic
ev idence of his presence at the Security National Ban

k

. Warren also testified to Crockett’s participation i n the robb ery of the Park National Bank in Heb ron. Th ere also was evidence that

Crockett fired his gun dur ing the c ourseof that
ro bb er y, as a

bullet mat

ched to hi s gun was

recove red fro m a file cabinet in the bank. A rational trier of fact could have
reasona bly relied upon any of

this evidence to find that Crockett was a willing

particip ant in

the conspiracy

charged in Count One of the indictment.

2. Turns

Turns argues that the g overnment's evidence was insufficient

because “the credibility of Roge rs and Warr

en is suspect to the poin

t that rea sonable m

inds should

reject their testimony as a matter of

law.” Turns’s Brief at 24. However, determining the credibility of witnesses is a t as k f

or th e j ur y, notthis cour

t. See United Sta tes v. Hil liard , 11 F.3d 618, 620 (6th Ci r. 1993 ) (not ing th at thi s cour t does not we igh evidence, make cr

edibility determinations, or

substitute

its j udgm ent for that of the jury

). In reviewing

the denial of a motion fo r acquit

tal, we mu st “refr

ain from i

ndepend ently judgingthe credibility of witnesses or [the] weight of the evidence.” United Sta tes v. W alls , 293 F.3d

959, 967 ( 6th Cir. 2002). Moreover, all reasonable infere nces are t o 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 th e testimony of Warren and Rog ers. Moreover, Turns provided the FBI with a

detailed accoun t of the ro bberies
, his gun was f

ound with two of the r

obbers, he provide d false identificationto a co-con sp irator, and he made several purchases and bank dep osits directly after thr ee of the robberies to which he was linked. The evidence against Turns
was sufficient

for a rational trier of fact to have f ound Turns guilty.

VI

A. Severance of Turns’s Trial

Turns contends

that the d istr ict 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 en tirel y separate from the alleged c onspiracy that e xisted betwe en Rogers , Warren , and Croc kett that, accord

ing to Turns, dominated in this case. We do notfind this argument persuasive.

Rule 8(b) of t

he Fede ral Rules of Cr imina l Procedure permits two or more defendants to be char ged in th e same indictment“if they ar

e alleged to have participated in the
same act or transac tion or in the same series of acts or transactio ns c onstituting an offense or offenses.” All of the defenda nts com mitte d bank robberies with Rogers and Warren during the co urse of t he consp iracy

and their testi mon y was admis sible ag ainst all o f the def endants, including Turns. The robberies were a ser ies of offenses that
were conducted over a relatively short period of time and performed

using a s imilar pattern of behavior. The district court, th erefor

e, did not err in joining the trial of Turns with th at of Cr oc ke tt an d B ev er ly.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 cou rt he ld that the joinder of two defendants was improper under Rule 8(b). I n Hatcher
, both defe ndants, Manetas and Hatcher, were jointly indicted for federa l narcot ics crime s. Although both defendants had been charged with three counts relating to the possession and distribution of heroi

n, one of the defe ndants ha d also bee n charged with thre e counts r

elat ing to the possession and dis tribution of coca

ine in an e

ntirely unrelat ed serie s o f offense s. This court held that since there was “no connection between Manetas and the c ocaine-rela

t ed char ges ag ainst Hat cher,” the joinder of the two defendants was impro per

. Ibid

. The co urt further noted that “[t]he

joinder o f multiple defenda nts is pro per un der Rule 8(b) only if e ach of the counts of the indictment arises out of the same ac t or transaction or series of acts or transactions . . . .” Ibid

. The case before u s n ow is distin guishab le from Hatcher
, because e ach bank robbery can easily be

viewed as part of
one ongoing

set of tra

nsaction s, linked t

ogethe r by Ro ger s and Warren. Furthermore, we have held that “a gro up of act s or transactions cons titute s a ‘serie s’ if they are logically interre la ted,” and that a

“grou p of acts or trans actions is logica ll y interrelated, for instance, if the acts or tra nsactions are par t of a com

mon scheme or plan.” See United States v. Johnson
, 763 F.2d 773, 776 (1985) (noting that several other circuits have held similarly an d citi ng United States v. Corbin
, 734 F.2d

643, 649 ( 11th Cir. 19 84); United States v. Cavale
, 688 F.2d 1098, 1106 (7th C ir. 1982) ; United States v. Ford
, 632 F.2d 1 354, 1371- 72 (9th Ci r. 198 0)). Given the
common scheme i

nvolved in

this case , the distr

ic t cour t did

n otabuse its

discreti on in joinin

g Turns ’s trial w

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

Turns also argues that the district court erred in deny ing his motion to sever the trial, brought under Rule 14 of the Federal Ru les of Criminal Procedure. Severance of a joint tri al i s permitted, i f joinder is prejud icial. F ed. 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 f or sever ance if it appea rs that a d efendant or the government is prejudiced by a joi nder o f offenses or of defendants.”) (internal quotation marks
o mitted). We review a denial of severance by the di stric t court for a cl ear abu se 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 argue s that his tr

ial was pr eju dic ed by being

joined wi ththe other defendants since the credibility of th e testimony of Roge rs and War

ren, the gover nment witne sses who placed Turns at the scene of the crime, was bolstered by additional pieces of incriminating and corrobora ting evidence inthe case

agains t Be verly

and Crockett. For

example, in Crockett’s case, t he go vernment pre sented a photograph taken during one of

the bank robberies, which was purported to be of Crock ett while he was in the processof robbing the bank. InBeverly ’s case, there was mtDNA evidence presente d that linked Be ve rl y to on e of the robberies. These pieces of evidence corrobora

ted th e testimony given by Rogers and Cro ckett, although the evidence would have bee n inadmissible in a trial focused solely on Tur ns.
Turns’s contention that Rog ers’ s and Warren’s testimony
was bolstered during the trial by corroborating evidence presented in the c as e aga

inst Beve

rly and Crockett is unpersuasive. We have stated in Causey , 834 F.2d at 1288, that “a defe ndant is not entitle d to severa nce simply

because the evidence against a co-de fendant is far more damaging thanthe evidence against him.” Moreover , a defendant does nothave a right to a separate tria l, mer el y be cause hi s likelihoodof acquittal would be gre ater if severance were granted. See Unite

d States v . Gallo , 763 F.2d 1504, 1526 (6th Cir. 1985) (citing United States v. Stirling , 571 F.2d 708, 733Nos. 00-3617/3618/3741 United States v. Beverly , et al. 25

(2 d Cir. 19 78); United States v. Larson , 526 F.2d 256, 260 (5th Cir. 1976)). “Absent a showing of substantial prejudice,
s pillover of evide nce fro m one cas e to another does n o t require severance.” Ibid . (cit ing United States v. Ricco
, 549 F.2d 264, 270-71 (2d Cir. 1977)). Tu rns has not made a showing of s ubst antial prejudice in this case, and thus the district court did not abuse its discretion by deny ing Turns’s motion for severance.

B. The Cross -Examin ation of Ant hony Roge

rs
Turns contends that

the district court abused its discretion by not allowi

ng him toquestion Rogers on cross-examination about his alleged attempt

to sexually molest Turns’s twelveye ar-old daughter. We review a trial co urt’s r ulings 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, t hat he attempted to molest my client’s twelve- y ear old daughter. She was twelve- ye ars old at the time . . . .” The government objected at t his p oint, arguing that this information was irrelevant and therefore inadmissible. Turn s’s counsel responded

that the informationwas cru cial to Tu rns’s de fense and that it was “not beingoffered for impeachment purposes.” Defens e counsel went on to explain that this information was relevant to Turns’ s motivation for go ing to the FBI a nd providing information on Rogers and Warren. The d istrict court que stioned Tu

rns’s co unsel fur ther as f ollows:

The Court: Again, what diff erence does it make what hi s m ot iv e wa s i n go in g to th e FB I? 26 United States v. Beverly , et al. Nos. 00-3617/3618/3741

Turns’s Counse l: Isn’t it alway s important when the government

is trying to prove a

case against somebody what some

body ’s motive i s?

The Court: What the motive is is the m otive for the ba nk ro bb er ie s a nd th e c on sp ir ac y.
The district court subsequently sustained the objec tion. Later inthe t rial , during

Turns’s c

ross-exa mination of

Rogers , Turns’s counsel a

gain tr ied to que st io n Roger s about his alleged sexual ass ault 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 abuseof Tur

ns ’s daughter related to why Rogers was appearing as a government witness aga ins t Turns. The districtc ourt a gain decided that the testimony was inadmissib le, statin

g in rel evant pa

rt:

Iam 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 e

xtremely prejudicial to the government. So I

am going to adher e to my earlier ruling, and y

ou’re no t permitte d to ask suc h question s. Later, when the issue was raised a gain, d efense counsel t old the court that

he would s

pecific ally

like to ask Rogers: “Isn’ t it true tha t yo u knew Do

ug Turn s was a

war e of your se

xual misconduct

with his da

ughter , and that ’s wh y yo u falsely accused him of these bank robberies?” Before ruling on whether this question could be asked, the court asked counsel if he ha d an y information indicating that Mr. Rogers was
awa r e 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 hear d ab out the al legation when Tur

ns testifi ed himself

that Rog ers h a d molested his daughter, which pr

ompted him t

o turn Rog ers in to the FBI. Tur

ns now argues that the district court committed constitutional error

in deny ing Tur ns the abi lity

to prove b ias.Nos. 00-3617/3618/3741 United States v. Beverly , et al. 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 po inted out by Tu rns in his brief, the S upreme Co urt has no ted that the “cros sexamina tion of a witness is a matter of right.” Alford v. United States , 282 U.S. 687, 691 (1931). F urthe rmore, the Courthas subsequent ly

stated that “[c]ross-examination is the principal means by w

hich the b elievab ility

of a witne ss is subject to explora

ti on at t rial, and is ‘alway s relevant as discr e diting the witne ss and af fecting the weig

ht of his testimony.’” Davis v. Al aska , 415 U.S. 308, 316 (1974) (holding that precluding a defendant from c ross- exam inin g a key prosecution witness to show bias violated the defendant’s constitutional right to confront the witne ss testify

ing ag ainst him). However, the right to cross-e xamine i s not absolute. United States v. Atisha , 804 F.2d 920, 929-30 (6th Cir. 1986). Trial judges have latit

ude to “im

pose rea sonable l im its on suchcross-examination based on con cerns about, among other things, harassment, prejudice, confus ion of the issu es, the witness’ safety

, or inter rogati on that is r

epetitiv e or only marginally

relevant.” United States v. Blakeney
, 9 42 F.2d 1001, 1022 (6th C ir. 1991)(emphas is omit ted ). See also United States v. Broadus , 7 F.3d 460, 465 (6th Cir. 1993).

Inthis case

the trial court d id not abus e its discr etion in ruling that t

his information was

inadmissib le, as it w as only marginally

relevant and highly

prejudicial. I t wa s not ob viou sly releva nt for pur

poses of d

emonstra ting bia s, because even if Roge rs had sexually

molested Turns’s child, there was no evidence that Rogers had ever been ac cused of doing so, or kne

w that any one suspected him of committing suchan offense. Unless Rogers had bee n confron te d, there would be no rea son for hi

m to be particu

larly biased a gainst Turns. The information more accurately explains why Turns would be biase d again st

Rogers , and that

is irrele vant to this inqui ry. Any evidenc e of such a heinous act is likely to be prejudic ial. Furthermore, any error in the district court’s ruling would be harmless, since Turns shared h is pe rsonal 28 United States v. Beverly , et al. Nos. 00-3617/3618/3741

conviction that Rogers had molested his daught

er durin g his
ow n t es ti mo ny.

C. Turns’s Sentence

Turns argues that his sentence of 8 58 months, or 71 1/2 ye ars, largely

mandated by the r

equirement of consecutive sentencingunder 18 U.S.C. § 924 (c), is c ruel a nd unusual punishmen

t, in violation of the Ei ghth Ame ndment. I n particular, Turns ar

gues tha t his sente

nce is “gro ssly disproportionate” to his crime of havi ng driven the getaway
car in four ba

nk robbe ries and provid edfalse identification document s, especia

lly g iven that he had

no prior criminal record and supplied critical information to the FBI about the crimes during its investigation.

Since a cons titu tion al chal lenge to a sentenc e raise s a question of law, w e revie w Turns’ s claim de novo

. United States v. Flowal , 163 F.3d 956, 963 (6th Cir. 1998). Turns relies principally on the Supreme Court c ase o f Enm ond v. Florida
, 458 U.S. 782 (1982), in which the Court vacated a death sentence that had b een impos ed on th e drive r of a getaway car in a doubl e mur der. In Enmond , the Court reasoned that the sentence did not serv e the “two principal purposes ” that the d

eath penalty

is intended to serve:
r etr ibution and deterrence. Id . at 798. The Court reasoned that since the defendant “did not kill or at tempt to kill” the victims, his “culpabi li ty [was] plainly different from that of the robbers who killed,” and thus the sentence did not serve the goal of retribution. Ibid

. Further more, the defenda nt “did not[have] any

intent ion o f part icipa ting i n or fac ilit ating a murder,” and “it seems likely that ‘c ap ital punishment can
serve as a deterrent only when murde r is the result of premeditation

and delib eratio n.’” Id . at 79 9 (quo ting Fisher

v. United States , 328 U.S. 46 3, 484 (19 46) (Fr ank fur ter , J. dissenting)). Finally, “[u]nless the death penalty whenNos. 00-3617/3618/3741 United States v. Beverly , et al. 29

applied to those i n Enmund’s position measurably contributes to one or both of the se goals, it ‘is nothing more than the purp osel ess and needless imposition of pain and suffering,’ and hence an uncons tit utional punishment.” Id . at 798 (quot ing Coker v. Georgia , 433 U.S. 584, 592 (1977)).

The “narro

w propor tionality principle ,” means

that only “extreme sentences that ar e g rossly disproportionate to the crimeare prohibited.” Flo w al , 163 F.3d at 963-64. A plurality of the Court rejected the defendant’s asser tion that his life term without parole was disproportionate becau se i t
was his first fel ony co nviction. Harmelin v. Michigan , 501 U.S

. 957, 994 (1991). Instead, the Court observe d that the defendant had been convicted of possession of more than 650 gramsof cocaine and

held that Michigan could determine that the seriousness of the offense warranted the seve re sentence. Id . at 990.
Here, t oo, Turns has never been convicted of a f elony before. However, he was convicted of par ticipat in g in four separate armed bank robberies. Eve n though h

is role was

to drive the getaway

car, he was fully

aware of the cr ime he was pa rticipating in and thus his culpa

bility is not dimini sh ed

. Furthermore, at least

one of the guns used in the course of the robberies was traced

back to T

urns, who had purc hased it in 1993 and had given it to Rogers. Turns was sentenced to five years for the f

irst o f four counts of armed bank robbery brought pursuant to 18 U.S. C. § 2113 (a)and (d) a nd to twenty years f or the remaining three counts, to run
consecu tiv el y. N o one of these sent ences is intrinsic ally “gros sly disproportionate” to the crime of armed ban k
ro bb er y. Man dating consecutive sentences is not an
unreasonablemethod of attem pting to deter a criminal, who has already

committed several offenses using a firearm, from doing so again. See Harm elin , 501 U.S. at 994 (stating that mandatory

penalties are not “unusualin th e 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 d

efenda nt argu ed that hi s thirty-two-y

ear sentence for two convictions under 18 U.S.C. § 924(c) violated the Eighth Amendment’s prohibition on cruel an d u nusual punishmen

t. The panel addressed the meri ts of t he defendant’s claim, ev en thoug h it did not a

ppear that h i s counsel had raised this issue at the sentencing hearing, which woul d ord inarily prec lude review, stating that it was “satisfied that the Eighth Amendment did not bar [the de fe ndant’s] sentence.” Id . at 751. The court also took note of the fact that ina similar challenge, the Ninth Circuit had h eld th at a defendant’s sentence based on his conviction under 18 U.S.C. § 924(c), which accounted for twenty -five ye ars of his total sentence, was not c ruel and unusual. Ibid . (cit ing United States v. Parker , 241 F.3d 1114, 1117-18 (9th Cir. 2001)).

Inthis case, a ltho ugh the length of time to be served by Turns, a s requir

ed by 18 U.S.C. § 9 24(c), i s severe , it would appear to serve t he twi n goals of retribution and deterrence
, withoutbeing grossly

disproportionate to the several offenses committed. Th e S upreme Co urt has ne

ver held that a sentence to a specific term of y ears, even if it might turn out to be more than the reasonable life expectancy of the defenda nt, constitute s cruel a

nd unusu al p unishment. 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 p rincip le here. But see Ramirez v. Castro , No. 02-56066, 2004 WL 868517 (9th Cir. Ap r. 19, 2004) (holding 25 years-to-life sentence for three shopliftin g c onvictions, 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 M rs. Parks
, who was his wife when he was ar r ested, but not when he committed

th e of fen se f or w hi ch h e wa s i den ti fie d. In addition, Crockett appeals the district court’s admission of FBI Agent T

rombitas’ s te sti mony, as it pertained to the identification made by Mrs. Par ks. Following Crockett ’s arrest in July 1999, FBI Agent Trombitas went to Crockett’s home in order to interview Croc k ett’s wife, Mr s. Parks. T rombitas f

irst infor med Mrs. Parks that her

husband had been arrested earlier in the da y for his involveme

nt in seve ral bank robberi es. Agent Trombitas thenshowed

her a photograph that was taken during the bank robbery at the Security Na

tional Bank, whi ch occurred on May 18, 1995, a

pproximate ly

two y ears be fore Cro ckett

and Mrs. Parks we

re marr ied, but n e verthel ess durin g their acq u aintance. 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 mo tion to suppre ss. As a re sult, Judge Graham held a pretrial hearing on the admissibility of Mrs. Parks’s identification. At the pretrial hearing
, T rombitas testified as to the circumstances under which the identificationwas made. Trombitas explained t h at he took out the photograph, placed it in front of her and aske d, “do you recognize tha

t p erson the

re?” According to

Trombita s, Mrs. Parks picked up th e pho tograph, and with one hand on her mouth, said “oh, my God, that looks like Johnny.” At that point, Trombitas noticed her ey es tearing up and

asked her to reaffirm the iden tification, saying : “so that looks like Joh nny ?” Ibid

. Mrs. Park s respond ed “y es, it doe s, it’s him, and I’m n o t going to lie for him.” Ibid . At this poi nt, 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 o n the b ack of t he pho tograp h. Ju dge Graham ruled that, based upon the totality of the circumst ances, the photographic identification procedure was sufficiently re liable to permit the witness to testify.

Later on, at tria

l, th e gov ernment represented to the court that the FBI and the po stal inves tigative service had “g one to great lengths” to try

to serve Mrs. Parks with no success. As
a result, the prosecution soug ht to i ntroduce this pretrial id entification throu gh A gent Tr ombitas’s testimony . Crocke

tt objected on the ground that this was hearsay . However, the court agreed with the gover nment that Mrs. Parks’s identification, based on Trombitas’s testimony, was admissible

as an excited utterance, an exception to the hearsay rule.

Ul ti ma te ly, after T

rombitas had give

n his testimony , Mrs. Parks tes tified at

the trial

. She recanted her identification of Crockett
, although she admitted tha t she had told Agent Trombita s when he inter viewed h er afte

r Crocke tt’s arr est, 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 38 0, 383 (6th Cir . 1982). T he burde n rests on Crockett t o demonstr ate that the pretrial identificat io n procedure was impermiss ibly

suggestive. Unite d States v . Hill , 967 F.2d 226, 230 (6th Cir. 1992). If Crockett can de monstrate that the police performed an

unduly suggestive photographic lineup, thenthe trial court must deter mine, in light of all the circumst ances, wheth er

the unfair suggestiveness was conducive to a “ver

y su bstantial likelihood

of irrep arable misidentification.” Simmons v. United States , 390 U.S. 377, 384 (1968 ); Hill
, 967 F.2d at 230. The Supreme Court hasNos. 00-3617/3618/3741 United States v. Beverly , et al. 33

listedfactor s that a court should weigh in determining

w hether an identification is reliable, even though an und ul y s uggestive identific ation pro cedure may have be en use d

. Thesefactor s are: 1)the witne ss’s oppor tunit y to view the criminal at the time

of the cr im e; 2) the witness’s degree of attention, 3) the accuracy

of the witness’s prior description of the criminal; 4) the level o f certainty demonstrated at the confrontation; and 5) the time between the crime and the confrontation. Neil

v. Bigge rs , 409 U.S. 188, 198-200 (1972) (stating that the “likelihood of misidentification . . . violates
a defendant's right to due p ro cess,” not a suggestive line-up per se ).

Before ruling on the admissibility of this evidence, the districtcourt in th

is case carefully

considered the reliability of the identification. The judg e noted that there was only one photograph, that the witness did not observe the offense, but
was certain

ly f amilia r wi th the suspect, and that the photograph

was of “very

go od qu al it y . . . clearly por tray[ing Crockett ’s] facial features, as well as all of the o t her characteristics of his phy sical anatomy .” Althou gh these observations are not necessari ly h elp ful in evaluating all of the Biggers

factors outlined

above, they

do prope rly address the question of reliability, the funda mental inquiry.

This was not a

typ ical p olice ph oto spread in which a witness is asked identify an other wise-unknown perpetrator based solely on observa

tion at the

time of the

crime. I n this instance, Mrs. Parks was being asked whether the ba nk surveillance picture in fact depicted someone she knew very well and would

readily recognize. The Biggers

factors are not particu larly helpf ul in a case such as this, where the identificationhas been

made by someone c lose to the

suspect. Rather, we should be guided by cases in which identifications have been

m ade by relative s or close

friends

. United States

v. Saniti , 604 F.2d 603 (9th Cir. 1979), hel d that t wo r oomm ates of the ac cused co uld prope rly be permi

tted 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. Borell i , 621 F.2d 1 092 (10th Cir. 1980) (ho lding tha t a trial court di d not abuse its discretionby

admitting into evidence identification testimony of defendant’s stepfather who recog nized t he de fendant in a bank surveillance photo).

Inthis case, although Mrs. Parks was provided wi th on ly a si nglephotogr

aph, it wa s not pres ented in a sugge st iv e manner. She was not asked “is this your hu sband? ” The identificationwas n ot likely to have produce d a misidenti f

ication, given Mrs. Parks’s familiarity with the defendant at the time when the picture was taken. Furthermore, given her relat ionship to the defendant, she would be unlike ly to

be biase d again st him, and would have every reason n ot to identi fy

Crockett t o the authoriti es, if there was any

doubt. The dis trict court, therefore, did not commit clear error in deny ing Croc kett’s mot

ion to suppr

ess this pretrial identification.

2. Excited Utterance.

The district c ourt sepa

rately ana lyzed the question of whether Agent T rombitas would be al lowed tot estify about the statemen

ts made by

Mr s. Parks during h

is intervi ew, in whichs h e identified Crockett as one of the men in the bank
s urvei llance photo. It is undisputed that Trombitas’s testimony with regard to Mrs. Parks’s identification of Crockett was hear say ; w hat is disputed is whether the comments

were “excited utterances” and therefore within an exception to the hea

rsay rule

. Federal Rule of Evidence 803(2) provides that

“a statement relating to a startling eve nt
or condition made while the declarant was under the stress of excitementcaused by

the event or condition” is not barred by the hearsay

rule. The excited ut terance rule requires that 1) there be

an even t startling

enough to cause

n ervous excite ment; 2) the sta

tement be

made bef

ore ther e is a n opportuni ty to contrive or misrepresent; and 3) the statement be made while the person in under the stress of the excitementNos. 00-3617/3618/3741 United States v. Beverly , et al. 35

ca us ed by the event. Haggins v . War den, Fort Pillow State Farm , 715 F.2d 1050, 1057 (6th Cir. 1983). See also United States v. Winte

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

The district c ourt found that Mrs. Parks’s statements met the three requirements of our excited utterance doc trine. First, viewing

the “phot

ograph of the in

dividual t hat s he recognized

as he r husba nd committing a bank robbery ” was
a star tling event. Second, according to Trombitas’s te st im on y, Mrs . Parks uttered the words “oh, my God, that looks like John ny, ” as s oon as she saw the photograph, and therefore before

she could

have ha

d an oppor

tunity to “contrive or misrepresent.” Third, Mrs. Parks identified Crockett in her ve

ry first sta

tement u pon s eeing 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 mome

nt. The dis trict cou

rt did not abuse it s discretionin its admis sio n of Trombi tas’s tes timony

as it related to Mrs. Parks’s pretrial identification.

B. Admissibility of Crockett’s Income Tax Returns

Crockett cont e nds that evidence presented at trial by the government

reflecting the fact that he did not file a tax return in1994 or 1995 was irrelevant and prejudici al . Crockett made a timely objectio n to the admission of this evidence on thesegrounds. The court decided to allow the evidenc e to be presented, albeit with a limiting instruction t o the ju ry, intended to cure any

concerns over the potentially pre judicial nature of this information. The instruction given by the court was as fo llows: Ladies and ge

ntlemen, let me explain the limited nature of the evidence that

y ou are he aring a

bout this certification

of an absence of tax return. None o f t hese defenda nts is charg ed with an

y of fense relatingto 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 return s. This evidence is being offered only for the limited purpose of assisting you in d

et ermining

what income they may have ha

d during the years in question, and that’s the only purpose for which the evidence is being used.

We review t

he dis tri ct court’s decision regarding the admission of evidence for an abuse o f di scretion. United States v. Denton , 246 F.3d 784, 788 (6th Cir. 2001). “Even if the tr ial cour

t abuses i

ts discre tion, a ne

w trial is n

o t required un le ss [t he ] ‘ su bs ta nt ia l r ig ht s’ of a p ar ty a re affe cted.” U

nited States v. Bonds , 12 F.3d a t 540, 554 ( 6th Cir. 1993) (citing Fed. R. C r im. P. 52(a ); Rye v. Black & Decker Mfg. , 889 F.2d 100, 103 (6th Cir. 1989)). That is, “an abus e of dis creti on th at doe s not affect subs tanti al righ ts i s 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 1 995 wa s irrelevant for two reasons. First, Crockett points out that he was not

on trial for an y ill e gal activity

in 1994. Second, no evidence was offered by the g overnment to demonstrate that he h ad spent
more money than he c ould have earned witho ut being required to file an income tax returnduring t he rele vant time period. Crockett also argues that whatever pot ential relevance this evidence had was outweighed by i ts prejud icial ef fect, altho ugh he does not elaborate further as to how the evidence was prejudicial.

Prior to submitting this inform at ion with re gard 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 afterNos. 00-3617/3618/3741 United States v. Beverly , et al. 37

the Se cu ri ty N at io na l B an k r ob be ry. Crockett ’s failur e to file
anincome tax return in 1995 can be consider

ed to be r elevant : if Crockett’s legal income was insufficient to require a return to be filed, it would seem unlikely that someone making such
a sm all in come wou

ld be able

to buy a car f or $12,50 0 in cash. Crockett ’s failur

e to file a tax return in 1994, however, is less rele

vant, alt h ough it might be seen as demonstrating that Crockett did no t have a l arge i ncome in 1994 that coul d h ave explained

purchas es made i

n 1995. I n any case, giv e n the district c ourt’s c lear inst ructions t o the jury and wa rning that this evidence was not intended to show that the defendant had committed tax fraud, the evidence would not have had a prejudicial i mpac t on Crockett’s trial, affecting his substantial rights. The district court
, theref ore, did n

ot abuse i

ts discretionin admittin

g evide nce 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 revie

w a trial co urt’s rulings on the scope of
cross-ex a mination for an abuse of discretion. United States v. Chance , 306 F.3d 356, 385 (6th Cir. 2002). During th e cou rse of the trial, Crockett asked the district court to approve the issuance of a subpoena for the court’ s probationofficer, 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 exte

nt, a prob ation off

icer sho uld be per mitted to te st if y. S.D. Ohio Cr

im. R. 32.2(b). The rule

further states, in relev ant part : (d) The Court shall authorize a Probation o r Pret rial Services Office

r to produ

ce rec ords o r 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 Courtfinds there has been a particularized showing of a compelling need for such disclos u re 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 shal l be authorize d to testif y or to produce records, the a

uthori zation sha

ll be limite d to only those matters directly r

elevant to the demonstrated need. The Court’s Order shall identify the records which shallbe produced and the subject matter of the testimony which is authorized.

S.D. Ohio Crim R. 32.2(d) - (e)(1). In or der to make the necessary determinations pursuant to the rule, the court he ld
a hearing regar

ding the possible testimony of Ms. Jensen. At the he aring, Turns re

present ed to the cour

t that he w

ished to quest ion M s. Jensen for the purpose of attacking Rogers’s credibi lity

by showing t

hat Roge rs had ma

de state m ents to Ms. Jensen that contradi cted his testimony at trial. The line of questioni

ng rela ted prima

rily to informa

tion found

in Rogers’s presentencing rep ort, for which Ms. Jensen had interviewed

Rogers. However, the district court fou nd t hat Turns had not

laid a proper foundation in Rogers’s te st im on y, except with respect to Rogers’s substance abuse, since Turn’s attorney had not drawn Rogers’s attention to his prior allege dly inconsiste

nt stateme

nts in the r

eport. F or this rulin g, the cour

t reli ed on Fe deral Rule of Evidence 613(b), which sta tes in rel evant pa

rt:
Extrinsicevidence of

a prior inconsistent

st at em en t b y a witness is not admis sible unle ss the witness i s afforded
anopportunity to explain or de ny the same and the opposite party is a fford ed an opp ortunity to interr ogate the witness thereon, or the interest s of justic e otherw ise require.Nos. 00-3617/3618/3741 United States v. Beverly , et al. 39

The district court determ ined that Crockett’s counsel had demons tra ted

a compelling need for such testimony and reviewed Crockett’s cross-examination of Rogers inorder to determine whether a proper foundation had been la id. Onthe basis of that review, the court limited Crockett’s examination of the probation officer to matters relating to substanc e abuse and prohibited Crockett from questioning the probation officer about inf

ormation r

elating to Rogers’s m en tal and emotional health.

Crockett now contends that the district court’s decision to limit the examination of probationofficer Jensen denied him
a fair trial. He maintains that the district court co uld not first rule that there has been a particularized show ing 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 tha t evid ence. S uch co ntrad ictor y rulings would violate the local rule that governed the hear ing on Ms. Jensen’s trial testimony. However, F ederal 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 inco ns is te nc y. Crockett’s lawy

er faile d to mention the pre-se ntence r eport to Rogers in any context other than the latter’ s denial of any substance a buse. The Federal Rules of Evidence pr eempt local cour t rules. Therefore, the judge c orrectly limited the probationofficer’s testimony to the one topic that had been linked to Rogers’s pre-sentence re port.

D. Challen

ge for Caus e
Crockett u rge s this court to hold that the district court abused its discre tion in fai ling to excuse a potential juror for
cause. Cr ocket t stated a challenge for cause against a juror who had once

worked a

t the L ondon, Oh

io Co rr ectional Institution, where Crockett had previously been inc arcerated. 40 United States v. Beverly , et al. Nos. 00-3617/3618/3741

Crockett indicat ed th at he recognized the man. The district court questioned the pot ential juror about whether he recognized

anyone in the c ourtro om, b ut the man denied recognizing

anyone. B ased on

this response, the court denied the challen

ge for cause. L

ater, Cr ockett excused th e s ame juror with his last peremptory strike.

Whether or not Crockett’s challenge for caus e was meritori ous, the Supreme Court’s decision in United States v. Martinez-Salaz ar , 5 28 U.S. 304 (2000), forecloses Crockett’s claim. “[A] defenda

nt’s exerc ise of peremptory challenges . . . is not denied or

impaired when the defenda nt choose s to use
a pe re mp to ry challe nge to remove a juror who should have been excused for caus e .” Id . at 317. See also United States

v. Quin n , 230 F.3d 862, 865 (6th Cir. 2000). Furthermore, Crockett does not complain about the jurors who actu ally decided the case and thus has failed to establish that he had an insufficient

number of

perempt ory challen ges to r emove al l of the jurors that he w ished . Crockett suggests that it was necessary for the district court

to have explicitly determined that Crockett would not have used his final peremptory chall enge for a noncurative purpose, y et he does not

cite any law in support of this proposition.

E. Prosecutorial Misconduct

Crockett contends that

he is entit

led to a new tri al beca

use of prosecutorial misconduct. In pa rticular , Crockett points to
a gr ea t m an y co mm en ts (s ev en ty i n total) made by the pro s ecutor

during h

is closing

argume nt, which

Crockett considers to con stit ute im prope r vouc hing for g overnment witnesse s, im pr op er te st im on y, imp roper commenting on Croc ket t’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’sNos. 00-3617/3618/3741 United States v. Beverly , et al. 41

statemen ts are cause for

concern, ultimately it does not appear that the prosecutor’s behavior amounts to reversible err or.
Alth ough Croc kett lists a myriad of alleg edly improper statemen ts in his brie f, his only

objections at t

rial to the prosecutor ’ s closing argument attacked the f ollowing statemen ts:
And if y ou listen to the defense counsel, Agent Trombita s has now b ecome a co-cons pirator a long with Mr. Rogers and Mr. Warr en be cause he gave them informationand

set th em up, thin gs that they could tel l. Not only is Agent Tr

om bitas an a

gent, b ut he’s be come a co-cons pirato r he re by giving them information that they can do. . . . Ladiesand ge ntl emen, why Mr. Crockett did what he did, only he c an answer.
And if either one of them [prosecution witnesses] get caught in a l ie , t he y face th e possibili ty o f 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 ob jectio ns for pla

in
error. See United States v. Jackson-Randolph
, 282 F.3d 369, 384 (6th Cir. 2 002); United States v. Modena , 302 F.3d 626, 634 (6th Cir. 2002).

We review allegations of prosecutorial misconduct unde r a two-step process. First we decide if the s tatement was improper; if the answ er to tha t question

is y es, we mu st consider whether the statement was “flagrant.” United States

v. Francis , 170 F.3d

546, 549 (6th Cir. 1999). To determine if the state ments here reaches that level, effectively rendering Crockett’s trial fundamentally unfa ir, this court considers the f ollowing factor s: 1) whet her the r emarks te nded to mis l ea d the jury or to pre

judice the accused; 2) whether the remar ks
were isolated o

r extensive; 3) whether the remarks were deliber ately or ac ci de nt al ly p la ce d b ef or e t he ju ry; and

4) the 42 United States v. Beverly , et al. Nos. 00-3617/3618/3741

overall streng thof the evidence against the accuse d. United States v. Green , 305 F.3d 422, 429-30 ( 6th C ir. 2002); Francis , 170 F. 3d at 5 49-50 (citi ng United States v. Monus
, 128 F.3 d 37 6, 3 94 ( 6t h C ir. 199 7)) . In examin ing 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 (19 85) (hold ing that it is critical to examine the statements at issue withi

n the context of the entir e recor d); Francis , 170 F.3d at 552 (no ting that the determination of whether a pro secutor’s behavior consti tutes pr ejudicial error must be made in the context of the whole trial). The district court overruled C rockett’s objections with respect to t he st atements that appear above. Crockett objects to the state ment “why

Mr. Crock

ett did what he did, only he can a

nswer,” as an impermissible comment on his failure to testify. However , when viewed in context, that d oes not appear to have been the intent of the prosec utor ’ s statemen t. The sentences around

the state ment 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 ge

ntlemen, why Mr. Crockett did what he did, only he can a nswer. But he figured probably

he didn ’t get

arrested in ‘95 or ‘96,
so he wa s o ka y, t ha t t he se gu ys haven’t snitched on him.

It appears that t

he p rosecut

or was re sponding

to defen se counsel’s characterization that “the gover nment say

s this man robbed four banks, he stuck around Columbus for five y

ears, 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 pr

oper for the prosecutor

to counte r defen se counsel’s seeming ly p lausible theory that Crocke

tt would not have stayed in the ar

ea, had he actually

been guilty

of the robberi es.
From the trial transcr ipt, we ca

n infer that C rockett’s attorney objected to the com ment about Agent TrombitasNos. 00-3617/3618/3741 United States v. Beverly , et al. 43

because he felt it

was an un fair ch aracte rizatio n of his argument to th e j ur y. T his commen t is simply

a rhetor ical, albeit somewhat florid, argument that the testimony of Agent Trombitas could onl y be discounted if the jury be lieved that he was in fa

ct conspi ring wit h the prosecution witnesses by providing them with information that the y ot herwise only could have known if Cro ckett had indeed been conspiring with them. This

is certa inly a possi ble infe rence from the defense argume nt, and th ere was no impropriety in the pro secu tor’s rhetorical means of countering it. See Green , 305 F.3d at 430 (statingthat 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 tha t they could spend

“the re st of their life in prison.” Both had testifi ed that t hey had a

plea agree ment, wh ic h r eq ui re d t he m t o t es ti fy t ru th fu ll y. The jury could ce rt ai nl y inf

er that there would be the potential for serious consequences if the witnesses lied, but the prosecutor technic ally

went beyond what had been presented as evidence by stati ng they wou ld go to priso n for life. However, the remark do es not meet the s tandard s for re versal s et out in Green. The remark

did not mislead the jury, nor prejudice the accused. It was an isolated, extravag ant remark that asserted slightly more than could be supported in the record. Fi na ll y, inthe ca se of Crockett, who is the only defe ndant who objected to this par

ticula r r emark, t

he evide nce of hi s guilt
was indeed overwhelming, including in particu lar t he damning photograph, as we ll as the consistent testimony of Roger s and Warren, which the jury accept ed with re spect to
eac h of the defendants. Considering all of these factors, w e cannot say that this p rosecutorial conduct constituted reversible error.

We review t

he rema ining sixty

-eight comments

for plain
error. See Young , 47 0 U.S. at 14, 16 (1985) (holding that altho ugh the prose cutor ha d made improper st

atements 44 United States v. Beverly , et al. Nos. 00-3617/3618/3741

amounting

to error, the error was not reversible under plainerror rev iew since “[v]iewed in context, the prosecutor’s statemen ts . . . were not such

as to undermine the fundamental fairne ss of

t he trial and contribute to a miscarriage of justice”). None of t

he rema ining comments coul d be characterized

as misconduct that “so infe ctedthe 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 Crock ett, Bev erly , and Tur

ns.