The opinion of the court was delivered by: Slomsky, J.
Before the Court is Defendant Markeith John Webb's Motion for Judgment of Acquittal and/or New Trial (Doc. No. 90) and the Government's Response in Opposition (Doc. No. 100). After a four-day jury trial, concluding on December 3, 2010, Defendant was found guilty of the charges contained in a Superceding Indictment. The instant post-trial Motion followed. Because the Court finds that (1) the evidence presented by the Government is sufficient to establish Defendant's guilt beyond a reasonable doubt on the charges in both Counts of the Superceding Indictment, and (2) the interest of justice does not require a new trial, the Court will deny Defendant's Motion.
On December 1, 2009, Defendant was charged with armed bank robbery of the branch of the Lafayette Ambassador Bank located in Easton, Pennsylvania (the "Bank") in violation of 18 U.S.C. § 2113(d). On or about January 13, 2010, Defendant, while represented by prior defense counsel, engaged in an off-the-record proffer with the Government during which he provided details about the robbery. (Doc. No. 90 ¶ 2.) Thereafter, Defendant became dissatisfied with his counsel, who in turn filed a Motion to Withdraw (Doc. No. 19). On May 26, 2010, the Court granted the Motion and appointed new counsel for Defendant (Doc. No. 30). New counsel has represented Defendant on a renewed pretrial motion and at trial and continues to represent Defendant to the present time.
On September 1, 2010, before the date of trial, Defendant filed pro se a Motion for a Franks hearing (Doc. No. 48). On September 27, 2010, new counsel for Defendant filed a Restated Motion for a Franks Hearing (Doc. No. 57). On November 10, 2010, the Superceding Indictment was returned by the Grand Jury, charging Defendant with armed bank robbery in violation of 18 U.S.C. § 2113(d), as well as the use of a firearm in connection with a crime of violence in violation of 18 U.S.C. § 924(c)(1). On November 18, 2010, the Court heard oral argument on the Restated Motion for a Franks Hearing. On November 24, 2010, the Court entered an Order denying the Motion (Doc. No 75). An Opinion containing the reasons for denying the Motion was also filed (Doc. No.74).
On November 30, 2010, trial commenced with jury selection. The trial lasted four days, concluding on December 3, 2010, when the jury found Defendant guilty of the two charges in the Superceding Indictment. (December 3, 2010 Trial Transcript ("12/3/10 Tr.") at 80:12--81:24.) On December 16, 2011, counsel for Defendant filed the instant Motion for Judgment of Acquittal and/or New Trial (Doc. No. 90). On January 19, 2011, the Government filed a Response in Opposition. (Doc. No. 100). On February 10, 2011, the Court heard oral argument on the post-trial Motion. For reasons that follow, the Motion for Judgment of Acquittal and/or New Trial will be denied.
III. SUMMARY OF EVIDENCE PRESENTED AT TRIAL
On June 5, 2009, just before eleven o'clock in the morning, a lone gunman robbed the Bank. Video surveillance recordings recovered from the Bank show the perpetrator wearing gloves and a mask over the lower portion of his face, and carrying a gun. The perpetrator seen in the video is an African American male.
Defendant, an African American male, was charged with committing the robbery in the Superceding Indictment, which contains two counts: Count One charges armed bank robbery in violation of 18 U.S.C. § 2113(d); Count Two charges the use of a firearm in connection with a crime of violence in violation of 18 U.S.C. §924(c)(1).
In his post-trial Motion, Defendant challenges the sufficiency of the evidence presented by the Government on both counts, and seeks a judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29(c)(1). At trial, the Government proved its case with direct and circumstantial evidence. The evidence consisted of: (1) testimony of bank tellers and customers who witnessed the robbery and specifically identified Defendant as the robber; (2) testimony of employees of an Exxon gas station where Defendant exchanged red dye-stained money for different bills shortly after the robbery; and (3) testimony of law enforcement personnel who testified that the money Defendant exchanged as well as the money found on Defendant at the time of his arrest, and stains on the upholstery of a vehicle Defendant drove on the day of the robbery, all tested positive for red dye and tear gas that are used in bank security packets or devices. Based upon the evidence presented at trial and viewing the evidence and all reasonable inferences drawn therefrom in the light most favorable to the Government as the verdict winner, there is sufficient evidence to support the jury's verdict.
A. Witnesses To The Robbery
Shaprese Thomas was working at the drive-up window of the Bank when someone ran into the Bank and said something to the effect of, "don't f'ing move." (December 1, 2010, Trial Transcript ("12/1/10 Tr.") at 167:23-168:1.) Thomas responded by turning away from the drive-up window toward the noise. She observed a heavy-set African American male "hopping the counter near the first teller station with gun in hand." (Id. at 168:4-14.) The perpetrator was wearing "something black over his mouth" and nose and when he jumped over the counter "it came down a little, and he pulled it back up." (Id. at 169:8:-18.)
The perpetrator took money from the drawer of another teller, Alexandra Jimenez, and ran past Thomas toward the drawer of teller Sally Chrin. (Id. at 169:23-25.) As the perpetrator ran toward Thomas she dropped money that she had been holding. (Id. at 182:14-21.) The perpetrator then ran out of the Bank and Thomas watched him through the drive-up window as he ran away. (Id. at 170:17-22.) Thomas saw the dye-pack on the robber explode and saw smoke "traveling behind" him. (Id. at 170:24-25.)
When the perpetrator's mask came down, Thomas saw his face and recognized him as someone who had been in the Bank before. (Id.at 171:7-14.) Thomas eventually realized that the perpetrator had visited the Bank with an elderly customer, Mattie Graham. (Id. at 172:4-16.) Thomas estimated that she had seen the perpetrator in the Bank with Graham two or three times prior to the robbery. She assumed he was her grandson. (Id. at 172:17-23.) Thomas identified Defendant Markeith Webb as the man she believed to be Graham's grandson and as the man who robbed the Bank on June 5, 2009. (Id. at 182:15--183:10.)
On cross-examination, Thomas stated that after the robbery, she started to fill out a "robbery kit," which included a picture of a man with blank features and instructions to the victim of a robbery to draw in the features of the robber. (Id. at 186:25--188:1.) No other tellers or witnesses started to fill out the form because the police arrived and there was no need to do so. (Id.) Thomas did not complete her form and did not provide it to anyone and she does not know what happened to it. (Id.) Thomas had written a description of the perpetrator on an envelope and she provided that envelope to one of the investigating officers. (Id. at 188:3-24.)
At trial, the jury viewed the Bank surveillance videos and photographs of the crime scene, admitted into evidence as Government Exhibits 3-10 and 12-18, and Thomas explained to the jury what the pictures and videos portrayed.
Sally Chrin saw the perpetrator enter the Bank and heard him order everyone not to move. (12/1/10 Tr. at 142:1-2.) He jumped over the low wall separating the customer side from the teller side and landed on the counter near teller Alexandra Jimenez. (Id. at 3-7.) The perpetrator wore a black handkerchief that covered his nose and mouth and he had a gun in his hand. (Id. at 142:12-18; 143:8.) When the perpetrator jumped over the wall, Chrin observed the mask or "handkerchief" fall down. (Id. at 148:20--149:2.) Chrin saw him grab money from teller Jimenez's drawer and then move toward teller Thomas, who dropped money she had been holding. (Id. at 143:10-18.) Chrin then heard a customer, Joseph Lombardo, tell the perpetrator to "leave those girls alone" and she heard the perpetrator yell something in response. (Id. at 150:18--151:3.)
The robber held the gun a few inches from Chrin's face while telling her not to move.
(Id. at 144:1-7.) He then took packets of money from Chrin's drawer, including a dye-pack, and left the Bank. (Id. at 144:10-11.) Chrin watched through the drive-up window as the perpetrator ran away from the Bank while apparently putting money in the front of his shirt. (Id. at 144:19--145:5.) She saw the dye-pack explode. (Id. at 145:7.)
After the robbery Chrin realized that the perpetrator was the grandson of a customer of the Bank. (Id.) Chrin estimated that she had seen the perpetrator in the Bank approximately three to five times prior to the robbery. (Id. at 151:4-7.)
Joseph Lombardo, a customer at the Bank, was standing at a teller station when a man who appeared to be 25 to 30 years of age ran up to the entrance to the teller's area and jumped over the "gate" to approach the tellers and rob them. (12/1/10 Tr. at 111:12-17, 19-25.) The perpetrator was wearing a "black scarf or something covering the lower part of his face." (Id. at 112:14-17.) When the perpetrator jumped over the gate, the scarf or mask slipped down and Lombardo caught a "glimpse" of a portion of his face. (Id.)
When the robber was on the teller's side of the counter, Lombardo noticed that he was holding a gun. (Id. at 113:14-18.) Lombardo witnessed the perpetrator showing teller Alexandra Jimenez that he had a gun and estimated that the perpetrator was approximately two feet away from Jimenez at the time. (Id. at 114:2-6.) The perpetrator proceeded toward teller Shaprese Thomas, who got scared and threw into the air money that she had been holding. (Id. at 114:21-25.) The perpetrator next approached teller Sally Chrin and showed her the gun. (Id. at 115:1-2.) Lombardo told the perpetrator that he was scaring everyone and that he should just put the gun down. The perpetrator told Lombardo to "shut up." Lombardo repeated his statement and the perpetrator responded, "shut up, or I'll shoot you." (Id. at 115:3-7.) At trial, Lombardo explained to the jury what the Bank surveillance videos depicted. (Id. at 120:12--125:14.)
Lombardo testified about his familiarity with guns. (Id. at 115:23-15.) He first handled a gun when he was in elementary school and his father taught him how to shoot. (Id. at 116:16-23.) One of Lombardo's relatives owned a gun shop and he frequented the shop when he was growing up. (Id. at 116:7-10.) Lombardo was confident in his ability to identify different types of guns. (Id.) He owns guns and rifles and knows how to shoot and clean them, and he was in the military where he used various types of guns. (Id.) Lombardo said that he was able to get a good look at the perpetrator's gun and that he thought it was a 9 millimeter, black, semi-automatic. The top part of the gun, the slide, was flat and black and the grips underneath the gun were dark. Further, Lombardo testified that where the slide met the frame, the gun was shiny as if either "the bluing was wore" or the serial number of the gun had been ground off. (Id. at 118:2-4.)
Alexandra Jimenez testified that on June 5, 2009 a man entered the Bank and came toward Jimenez's teller booth. He told her to open the "half wall" or low door next to her booth that separated the teller side of the counter from the customer side. (12/1/10 Tr. at 63:1-5.) The man banged a gun on the door. (Id.) Jimenez described the sound of the banging as something heavy and as metal hitting the wood of the door. (Id. at 64:6-17.) As Jimenez went toward the door to open it, the perpetrator jumped over the door and entered the teller side of the counter. (Id. at 63:7-9; 64:21-65:1.) He was wearing gloves and a mask that covered the lower portion of his face. (Id. at 65:3-18, 22-23.) He took money from Jimenez's open teller drawer and then walked toward teller Thomas, who dropped money she was holding. (Id. at 66:1-3.) The perpetrator waived the gun at teller Sally Chrin and told her to get away from the drawer. (Id.) He then took money from Chrin's drawer. (Id.) He placed the money in his shirt, and seemed to be wearing layers of clothing. (Id.) After he left the Bank, Jimenez, Thomas, and Chrin looked out the drive-through window and watched the robber flee. (Id. at 67:1-10.) A few moments later Jimenez witnessed an orange cloud of smoke, caused by an explosion in the bait money that the perpetrator had taken. (Id.)
B. Post-Robbery Witnesses
Kelly Hart, a regional manager of the Lafayette Ambassador Bank, was working in the main office located in Easton, Pennsylvania on June 5, 2009. (December 2, 2010, Trial Transcript ("12/2/10 Tr.") at 9:16-10:11.) Hart has been a regional manager for the Lafayette Ambassador Bank for approximately fourteen years and has worked for the bank for a total of twenty-three years. (Id. at 9:18-22.) The Bank is a traditional style branch with four teller windows in the lobby, a drive-up window, three offices, and a lobby. (Id. at 11:3-5.) There are sixteen surveillance cameras in the Bank, located throughout the lobby, at the entrance to the Bank, and in the offices. (Id.at 11:22--12:3.) The Bank uses a digital recording system (DVR) and images are captured "camera by camera. So it's not continuous." (Id.at 12:16-19.)
Hart learned of the robbery approximately five minutes after it occurred. She went to the Bank, arriving about ten minutes later. (Id. at 12:18-13:2.) She assisted in an audit to determine how much money had been taken from the Bank. (Id. at 13:8-14.) Hart concluded that $1,100 was missing from Alexandra Jimenez's drawer and $3,565 missing from Chrin's drawer. (Id. ...