The opinion of the court was delivered by: James Knoll Gardner, United States District Judge
This matter is before the court on Defendant Charles Everitt King's Motion for Judgment of Acquittal Pursuant to Rule 29 of the Federal Rules of Criminal Procedure and Defendant Charles Everitt King's Motion for New Trial Pursuant to Rule 33 of the Federal Rules of Criminal Procedure, which motions were both filed on September 15, 2009.*fn1 For the following reasons, I deny both defendant's motion for judgment of acquittal and defendant's motion for a new trial.
On March 31, 2009 defendant Charles Everitt King was charged in a two-count Indictment. Specifically, defendant was charged with armed bank robbery in violation of 18 U.S.C. § 2113(d) (Count One) and using and carrying a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A) (Count Two).
The charges arise from a bank robbery which occurred on July 26, 2009 at the Manufacturer's and Traders Trust Company ("M&T Bank") located at 2421 Old Philadelphia Pike, Smoketown, Lancaster County, Pennsylvania.
A jury trial was held before me on September 1-4 and 8, 2009. On September 8, 2009 the jury returned a verdict of guilty on both counts of the Indictment. On September 15, 2009 defendant filed his motions seeking judgment of acquittal pursuant to Rule 29(c) of the Federal Rules of Criminal Procedure and a new trial pursuant to Rule 33(a) of the Federal Rules of Criminal Procedure.
CONTENTIONS OF THE PARTIES
Defendant contends that, based upon the evidence presented by the government, no rational trier of fact could have found him guilty beyond a reasonable doubt of the crimes charged in the Indictment. In support of each of his motions, defendant asserts eight reasons why the evidence was either insufficient to sustain his conviction by the jury or the verdict is against the weight of the evidence.
Specifically, defendant argues that:
(1) there was no proof that defendant owned a gun or that a gun was found in his possession;
(2) none of the clothing used by the bank robber was found in defendant's possession;
(3) the testimony of Dee Baker established an uncontroverted alibi for defendant;
(4) no eyewitness identified defendant as the bank robber or as being in the bank;
(5) the majority of the money taken from the bank was never found in defendant's possession;
(6) there was insufficient evidence to prove that a dye pack was present in defendant's car;
(7) defendant's work history, sales and accounts receivable refuted the government's contention that defendant's motive for the bank robbery was that he was destitute; and
(8) there was no forensic evidence which proved that defendant was in the bank.
Finally, defendant avers that in analyzing all of the evidence presented at trial, no rational trier of fact could have found beyond a reasonable doubt the essential element of defendant's presence at the time of the robbery.
The government contends that the weight of evidence presented against defendant King is overwhelming and sufficient to support the jury's verdict. The government acknowledges that there were no eyewitnesses who placed defendant inside the bank and that no clothing or gun was ever recovered and linked to defendant. However, the government asserts that there is substantial circumstantial evidence linking defendant to this crime.
Specifically, the government contends that, among other evidence, the following circumstantial evidence supports defendant's conviction.
(1) defendant admitted that he was trained and had worked as a barber, thereby making it plausible that defendant was familiar with methods of altering his appearance;
(2) defendant's brother and sister-in-law testified about defendant's radical change in appearance shortly after the robbery, behavior consistent with consciousness of guilt on defendant's part, and evidence of his efforts to avoid apprehension;
(3) testimony of the laboratory expert from the Federal Bureau of Investigation that stains found inside defendant's car contained chemical components consistent with the dye packs given by the bank teller to the robber together with the money;
(4) based upon defendant's assertions that he had lost his contracting business, had income of only $215.00 per month, was unable to pay his bills, and had filed for disability benefits, his testimony established that he was running out of money;
(5) defendant was evicted from his prior residence and had been living in a camper parked either on a residential street near properties his brother owned or in a number of different campgrounds;
(6) defendant could not identify anyone for whom he had worked in the three months preceding his arrest, or from whom he had received a payment of any money;
(7) the alibi testimony of Dee Baker was not credible because her testimony was inconsistent with previous statements she gave to law enforcement officers;
(8) because of the numerous inconsistent statements defendant made about his life and activities, his testimony was not credible; and
(9) the multiple money orders defendant purchased and the corresponding deposits into his personal bank accounts of those money orders was consistent with defendant obtaining a large sum of money in the robbery.
In addition, concerning defendant's Rule 29 motion for judgment of acquittal, the government contends that the evidence taken in the light most favorable to the government is sufficient to support the jury verdict. Finally, concerning defendant's Rule 33 motion for new trial, the government asserts that a reweighing of the evidence presented will support the jury verdict as well.
On July 26, 2008 a lone gunman entered the M&T Bank branch located at 2421 Old Philadelphia Pike, Lancaster, Pennsylvania and robbed the bank of approximately $20,219.00. Below, I summarize the trial testimony of the key witnesses involved in this case and other stipulated evidence necessary for my determinations regarding defendant's two post-trial motions.
Julie K. Burkholder testified at trial on September 1, 2009 as follows. Ms. Burkholder is a teller at the M&T Bank branch located at 2421 Old Philadelphia Pike, Lancaster, Pennsylvania. This M&T Bank location is referred to as the "Smoketown" branch.*fn3
At approximately 11:30 a.m., a white male came into the bank wearing sunglasses, a baseball cap, jeans and a gray sweatshirt inscribed "Sports and XXL".*fn4 Ms. Burkholder further described the robber as being in his late 30s to 40s and 5'9" to 5'10" in height. His hair was cut short, dyed red, and the dye job on his hair was a bad one.*fn5 On cross-examination, Ms. Burkholder acknowledged that on the date of the robbery she probably told the police that the robber appeared to be between 30 and 35 years of age.*fn6
Upon entering the bank, the white male walked the shortest distance to Ms. Burkholder's window. She greeted the man. He pulled a black, semi-automatic handgun from his waistband and pointed the gun at first at her, then toward the ceiling.*fn7 When the man pulled the gun, he stated to Ms. Burkholder "I guess you know what this is", referring to the gun. She responded that she did.*fn8 The man then threw a canvas bag across the counter at her and told her to fill it up.*fn9
Ms. Burkholder began to fill up the bag with money located in her teller drawer.*fn10
At the time of the robbery, Ms. Burkholder was working with two other women, Roni Hackman-Ryner, the teller supervisor, and Sarah Wenger, the customer service representative.*fn11 There were no other customers in the bank.*fn12
While Ms. Burkholder was filling the bag, Ms. HackmanRyner came out of the Bank's vault.*fn13 The robber saw Ms. Hackman-Ryner and said to her "you have keys; I want to go in there", referring to the vault.*fn14 Ms. Hackman-Ryner indicated to the robber that there was not enough time and that she would just give him the money from her drawer.*fn15
When Ms. Burkholder was finished putting the money from her drawer in the bag, she walked down to Ms. Hackman-Ryner's teller window and held the bag as Ms. Hackman-Ryner placed the money from her drawer in the bag.*fn16 While Ms. Hackman-Ryner was placing money in the bag, the robber stated that he did not want any one-dollar bills. He also said, "I'm not afraid to shoot somebody and do what you are told or nobody's going home today."*fn17
While Ms. Hackman-Ryner was placing money in the bag, Ms. Burkholder saw her place her "bait money" and a dye pack in the bag.*fn18 Bait money is a package of money where all the serial numbers are pre-recorded.*fn19 A dye pack has a few bills with the serial numbers pre-recorded and a dye pack in the center of the bills. The dye pack is supposed to expel dye once it leaves the bank branch.*fn20 Every teller has a dye pack in his or her drawer. Each teller has been instructed to place one dye pack in a bag in the event of a robbery, if the teller feels comfortable doing so.*fn21
After Ms. Hackman-Ryner had placed the money, the marked bills, and the dye pack in the robber's bag, she gave the bag to Ms. Burkholder. Ms. Hackman-Ryner pushed Ms. Burkholder away and told her, "go, just go", at which time Ms. Burkholder gave the bag to the robber.*fn22 The robber then directed all three women to come into the lobby and kneel down.*fn23 Ms. Wenger entered the lobby first, followed by Ms. Burkholder.*fn24
Ms. Hackman-Ryner did not get to the lobby before the robber was through the first set of doors on his way out of the bank.*fn25
After the robber left the bank, Ms. Burkholder jumped up and saw the robber run outside, past the side window. She observed the robber run across the parking lot toward a farm area across the street from the bank.*fn26 As the robber was fleeing, Ms. Burkholder saw a red puff of smoke coming from the bag, indicating that the dye pack had gone off.*fn27
During her testimony, Ms. Burkholder identified five still photographs from the security video taken at the bank.*fn28
The photographs depicted the robber at various stages of the robbery. These pictures were displayed to the jury.*fn29
After the robbery, Ms. Burkholder prepared documents including a Cash Verification Strike Sheet, which verifies the amount of cash in a particular teller drawer, for July 26, 2008 before the robbery.*fn30 In addition, Ms. Burkholder prepared a Bait Currency Record, which is a list of all the serial numbers for the bait money that was given to the robber from her teller window.*fn31
Roni Hackman-Ryner, the teller supervisor at the M&T Bank Smoketown branch, testified at trial on September 1, 2009 as follows. Ms. Hackman-Ryner was present in the bank on July 26, 2008.*fn32 The robber was Caucasian, with a tan that appeared to be fake.*fn33 The robber appeared to be "middle aged" and approximately 5'7" tall.*fn34 However, on cross-examination, Ms. Hackman-Ryner acknowledged that on the day of the robbery she may have told the police that the robber looked to be in his 30s.
Ms. Hackman-Ryner recalled that the robber had "burnt orange dye" in his hair, had a very dark-colored goatee, and that his hair was not long, only down to his ears.*fn35 The robber was wearing a dark black or blue ball cap, black sunglasses and a gray sweatshirt.*fn36
Ms. Hackman-Ryner also completed a Cash Verification Strike Sheet and a Bait Currency Record similar to those prepared by Ms. Burkholder together with a Teller Cash Balancing Sheet and Teller Strike Sheet.*fn37
Finally, in addition to testifying to the events during the robbery, which testimony is similar to the testimony of Ms. Burkholder describing those events*fn38, Ms. Hackman-Ryder had a specific recollection of the threat made by the robber. The robber stated, "someone give me some f...ing money or no one's going home today." The robber further said, "I'm not afraid to shoot all of you."*fn39
On September 1, 2008 Sarah Wenger, the Customer Service Representative at the Smoketown branch, testified at trial as follows. Ms. Wenger was present at the bank on July 26, 2008 when the bank was robbed.*fn40 The robber was a white male, "a taller man", approximately 5'10" to 5'11" with a thin build and he looked to be in his 50s.*fn41 The robber wore a "darker color" hat and a gray sweatshirt with an "XXL" logo on it.*fn42 He had black hair that was straight and short, and he was wearing sunglasses.*fn43 Finally, the robber had a tan.*fn44
On September 1, 2009 Jill Caruso, Regional Security Manager for M&T Bank testified at trial as follows. Ms. Caruso stated that part of her job duties for the bank is the investigation of robberies that occur at the bank branches.*fn45 As part of the investigation of the robbery at the Smoketown branch, Ms. Caruso determined that the total loss to the bank as a result of the robbery was $20,219.00.*fn46
On the date of the robbery, the tellers at the Smoketown branch had bait money which was to be handed out in the event of a robbery, and which was given to the robber on July 26, 2008.*fn47 M&T Bank, and specifically the Smoketown branch, had been supplied with dye packs by 3SI Security Systems.*fn48
On August 26, 2008, pursuant to a search warrant, Ms. Caruso supplied bank records to Detective Preston Gentzler of the East Lampeter Township Police Department regarding defendant Charles Everitt King.*fn49 The records of defendant King's bank account indicate that on May 9, 2008 Mr. King had a balance of $784.29 in his account at M&T Bank.*fn50
Furthermore, the last five entries on defendant's bank statement for the month of May 2008 reflected that defendant had insufficient funds fees assessed because he had overdrawn his account, and his ending balance at the end of May 2008 was a negative $289.00.*fn51 Extended overdraft fees were repeatedly recorded on defendant's account throughout the month of June 2008, with a closing balance at the end of June of negative $848.22.*fn52
Ms. Caruso further identified various money orders made payable to Mr. King, all of which were endorsed by Mr. King, and deposited into Mr. King's account in late July and early August 2008.*fn53 In addition, Ms. Caruso identified five deposits totaling $10,500.00 made into Mr. King's account between August 4 and 7, 2008.*fn54 Finally, the balance in Mr. King's account at the end of August 2008 was $9457.97.*fn55
On September 1, 2009 East Lampeter Township Police Department Detective Scott Eelman testified at trial as follows. On July 26, 2008 Detective Eelman became aware of the robbery of the Smoketown branch of M&T Bank.*fn56
On August 22, 2008, Detective Eelman together with Detective Joseph Edgell became involved in the investigation by interviewing defendant Charles Everitt King at the East Lampeter Township Police Department.*fn57 Prior to the start of the interview, Detective Eelman advised Mr. King of his Miranda*fn58 warnings both orally and in writing, and Mr. King signed a document indicating that he had been given the warnings and was waiving his rights.*fn59
During the interview, Mr. King provided the following information to Detectives Eelman and Edgell:
(1) he received the money used for the purchase of money orders from painting barns in Virginia for three weeks;*fn60
(2) when asked if he recently purchased any money orders, Mr. King responded he purchased quite a few, from different places;*fn61
(3) when shown a surveillance photo from the Wal-Mart in Elverson, Pennsylvania of a truck believed to belong to him, Mr. King stated, "that is my truck";*fn62
(4) when shown a surveillance photo from the Elverson Wal-Mart of a white male and asked if he thought it looked like him, Mr. King stated "Yeah it looks like me";*fn63
(5) when asked if he may have purchased money orders at the Elverson Wal-mart, Mr. King responded, "I may have, I'm not sure";*fn64
(6) he had never seen, spent, nor possessed any dye-stained money that he knew of;*fn65 and
(7) he had only bought a total of three $500.00 money orders.*fn66
On August 26, 2008, Detective Eelman executed a search warrant on the Nissan Sentra motor vehicle belonging to Mr. King.*fn67 During the search of defendant's vehicle, red staining was observed on the carpeting on the front passenger side, front floor, near the transmission hump.*fn68 In addition, another red stain was located under the front passenger seat.*fn69
The carpeting was photographed and then cut out of the vehicle and secured for forensic testing.*fn70
On September 2, 2009 Michael P. Rickenbach, Forensic Chemist Examiner for the Federal Bureau of Investigation testified at trial as follows. Mr. Rickenbach tested the carpet samples from defendant's car that were sent to him by Special Agent Sean Dowd of the FBI.*fn71 Mr. Rickenbach opined, that based upon his testing of the carpet samples, that the two carpet samples obtained from Mr. King's vehicle contained the chemicals used in the red dye and tear gas used in the bank's dye packs placed in the robber's bag.*fn72
Franklin Aquila, Senior Field Service representative of 3SI Security Systems ("3SI") testified at trial on September 3, 2009 as follows. His organization provides security for banks and other organizations for prevention of robberies.*fn73 Mr. Aquila's duties include traveling to see clients, training staff, installing systems and doing maintenance and upgrades throughout the two-year contract cycle.*fn74
Among the products sold by 3SI are dye packs used in banks.*fn75 The Smoketown branch of M&T Bank was using his company's dye packs on July 26, 2008, the date of the robbery.*fn76
Mr. Aquila authenticated the Material Safety Data Sheet for the dye packs used at the Smoketown branch. The data sheet for the dye packs used that day included the chemical components of the dye packs.*fn77
On September 2, 2009 Lisa Goodhart, a Customer Service Representative for the Wal-Mart store in Elverson, Pennsylvania, testified at trial as follows. Ms. Goodhart was working at the Wal-Mart store on July 28, 2008*fn78 when she sold $1,000.00 worth of money orders to a man who paid for them in cash with bills that had pink marks on them.*fn79 The man laid a clear plastic bag on the counter with numerous bills inside with pink marks on them.*fn80 The man told her that he had spilled something on the bills and had washed and dried them.*fn81
Numerous times during the transaction, Ms. Goodhart tried to alert her supervisors about the transaction because the man seemed very nervous and was constantly looking down, away from the overhead camera.*fn82
Ms. Goodhart's supervisors did not come to her counter until the transaction was completed and the man had left.*fn83 When her supervisors did come to her register, the cash used to purchase the money orders was ...