The opinion of the court was delivered by: Chief Judge Kane
Before the Court is Defendant David Dupree's ("Dupree") motion for judgment of acquittal or, in the alternative, a new trial, pursuant to Rules 29 and 33 of the Federal Rules of Criminal Procedure. (Doc. No. 210.) This motion is fully briefed and is ripe for disposition. For the reasons that follow, the Court will deny the motion.
On April 23, 2008, a three-count indictment was filed charging Ronald Samuels, David Dupree, Latricia Samuels, and Mayra Rodriguez with armed bank robbery (Count I), use of a firearm during the bank robbery (Count II), and conspiracy to commit and aid and abet in the commission of those offenses (Count III). (Doc. No. 1.) Dupree's co-defendants all pleaded guilty after entering into plea agreements with the Government. After a three-day trial the jury rendered a verdict on November 4, 2009, finding Dupree guilty on all counts. On November 27, 2009, Dupree timely*fn1 filed the present motion for judgment of acquittal or new trial.
The testimony taken at trial focused on the armed bank robbery of the M&T Bank in Lebanon, Pennsylvania. The evidence, including pictures from the bank surveillance cameras, showed that two armed men entered the bank at about 10:00 a.m. on April 15, 2004. Tammy Waltermeyer, the teller on duty that morning, testified that a young African-American woman, who was later identified as Latricia Samuels, came into the bank early that morning and asked her for mortgage information. (Trial Tr. at 33.) She then noticed a vehicle back into the bank's parking lot with out-of-state tags. (Id. at 34.) She testified that shortly thereafter two men entered the bank and robbed it at gunpoint. (Id.)
Ms. Waltermeyer testified that one of the robbers, an African-American male wearing a yellow poncho and sunglasses, jumped over the counter, put a gun to her head, and demanded she open all of the cash drawers. (Id. at 34-37.) She described the gun he carried as a silver semiautomatic and testified that she had no doubt it was real based on her experience with guns. (Id. at 39-40.) The sunglasses he wore fell off when he jumped over the counter and were left at the scene. (Id. at 37-38.)
The second robber who came into the bank approached Mary Rodriguez, the teller stationed at the drive-up window. (Id. at 52; 57.) He pointed his silver, square-shaped gun at her head and forced her to turn over the money in her drawer. (Id. at 57-58.) While she was handing over the money, he stated "that's what I'm talking about." (Id.) He then returned to the lobby of the bank and warned both tellers that "all it takes is one shot." (Id.) Ms. Rodriguez testified that this robber was a male wearing dark pants and boots, surgical gloves duct taped to his wrist, a jacket, sunglasses, and a covering over his face. (Id. at 56-58.) The branch manager, Penny Mitchell, described him similarly, adding that she could tell from uncovered parts of his face that he was African American and believed from his voice and movements that he was between 25 and 30 years old. (Id. at 65-66.)
Because the two men who robbed the M&T Bank masked their faces, the tellers were not able to affirmatively identify the robbers and the bank surveillance cameras did not get any unobstructed facial pictures. Despite this, evidence introduced at trial showed that the robbers were Defendants Dupree and Ronald Samuels. DNA extracted from the dropped sunglasses left at the scene revealed that they were worn by Ronald Samuels. (Id. at 176; 253-55.) Dupree was identified by his coconspirators Latricia Samuels and Mayra Rodriguez. (Id. at 120-21; 205-206.)
Dupree has challenged the jury's verdict on all counts of his conviction. The Court will address his arguments in turn.
A. Motion for Judgment of Acquittal
Rule 29 of the Federal Rules of Criminal Procedure provides that a court may enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction. See Fed. R. Crim. P. 29. A defendant faces a heavy burden of demonstrating that the evidence adduced at trial was insufficient as a matter of law. United States v. Rosario, 118 F.3d 160, 163 (3d Cir. 1997). The Court's review of the evidence must be guided by deference to a jury's verdict. Id. Accordingly, a defendant's conviction will be sustained if, viewing the evidence in the light most favorable to the Government, "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Cuevas- Reyes, 572 F.3d 119, 121 (3d Cir. 2009) (quoting United States v. Voigt, 89 F.3d 1050, 1080 (3d Cir. 1996)). In making this determination, the Court does not weigh evidence or determine the credibility of witnesses. United States v. Beckett, 208 F.3d 140, 151 (3d Cir. 2000). The Court will therefore overturn the verdict ...