No: 02-4524 UNITED STATES OF AMERICA v. JOHN WALTER TRALA a/k/a Sonny a/k/a Walter John Trala JOHN WALTER TRALA

1
PRECEDENTIAL
UNITED STATES COURT OF
APPEALS
FOR THE THIRD CIRCUIT
No: 02-4524
UNITED STATES OF AMERICA
v.
JOHN WALTER TRALA
a/k/a Sonny
a/k/a Walter John Trala
JOHN WALTER TRALA,
Appellant
Appeal from the United States District
Court
for the District of Delaware
(Crim. No. 00-cr-00023-1)
District Court: Hon. Gregory M. Sleet
Argued: December 15, 2003
Before: ROTH and M cKEE, Circuit
Judges,
and ROSENN, Senior Circuit Judge.
(Filed October 26, 2004)
OPINION
Penny Marshall, Esq. (Argued)
Office of the Federal Public Defender
704 King Street
First Federal Plaza, Suite 110
Wilmington, DE 19801
Attorney for Appellant
Keith M. Rosen, Esq. (Argued)
Office of United States Attorney
1007 Orange Street, Suite 700
Wilmington, DE 19899
Attorney for the Appellee
McKEE, Circuit Judge.
John Walter Trala appeals his
conviction for bank robbery, conspiracy to
commit bank robbery, and use of a firearm
during a crime of violence. For the
reasons below, we will affirm.
I
A.Background of the Robbery
Trala’s conviction stems from his
participation in the armed robbery of the
PNC bank branch in the Eden Square
Shopping Center in Bear, Delaware (the
“Bank”). However, events began in the
spring of 1999 when the Bank’s head
teller, Melissa Bailey, began stealing
money from the Bank’s vault to support
her husband’s drug habit. App. 1248-51.
By November 1999, Mrs. Bailey had
stolen approximately $100,000. App.
1250.
Around that time, the Bank

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received $400,000 in cash from the
Federal Reserve to cover an increase in
customer withdraws that was anticipated
as a result of the “Y2K” computer scare.
App. 1251-52, 1254. Mrs. Bailey, as head
teller, had sole responsibility for these
funds, which were kept in a separate safe
inside the Bank’s vault. App. 1252. The
influx of Y2K funds afforded Bailey an
opportunity to replace the $100,000 she
had stolen from the Bank. However,
Bailey knew that any shortfall in the Y2K
funds would eventually be discovered
because those funds had to be returned to
the Federal Reserve on January 19, 2000.
App. 1255-56.
Mrs. Bailey’s husband, Philip
Bailey, operated a concrete business where
Trala worked as a concrete finisher. App.
1119. In the fall of 1999, Mrs. Bailey and
Trala began discussing the possibility of
robbing the Bank to create an explanation
for the missing Y2K funds. The robbery
would account for any shortfall in the Y2K
funds, thereby preventing the detection of
Mrs. Bailey’s prior embezzlement when
those funds were returned to the Federal
Reserve. App. 1136-37, 1258-59. Mrs.
Bailey informed Trala about the “Y2K”
funds, told him where the money was
located, and informed him that she would
have to be present during the robbery they
were planning because she was the only
person with the second half of the
combination to the vault. App. 1259-60.1
B. The Robbery
The bank was robbed at
approximately 8:00 AM on January 14,
2000. App. 1031-33. As planned, Mrs.
Bailey was present, as was Bank manager,
Brian Warnock. Id. Another Bank teller,
Lillian Foley, arrived while the robbery
was in progress. App. 1053. After the
robber fled, Foley drove to a nearby store
and asked someone to call the police.
App. 1056-57. When Delaware police
arrived, an officer found a red sweatshirt
and black knit cap on a sidewalk near the
Bank. Those garments matched the Bank
employees’ descriptions of the garments
worn by the robber. App. 1073.2 Warnock
and Foley described the robber as 5’6”-
5’9,” 150-160 pounds,3 and wearing a red
hooded sweatshirt. App. 1033, 1054.
Warnock also indicated that the perpetrator
was wearing a dark stocking cap and
sunglasses. See App. 1033. When
questioned, Mrs. Bailey denied any
involvement in the robbery and indicated
that $400,000 had been stolen from the
vault. App. 1274-75.
Mr. Bailey was sick at home on the
morning of the robbery. App. 1143. He
testified at Trala’s trial that Trala came
into Mr. Bailey’s room the morning of the
robbery, pulled money out of a brown
1 Any other Bank employee would have
the first half of the combination. App. 1259.
2 Trala admitted at trial that the red
sweatshirt was his, and that he owned a
number of black knit caps like the one found
near the scene of the robbery. App. 1762.
3 During a routine processing interview,
Trala stated that he was approximately 5’8”
and 155 pounds. App. 1564.

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paper bag, and asked Bailey how much he
wanted. App. 1144-45. Bailey further
testified that Trala told him that he would
put the money in Mr. Bailey’s shop. Id.4
Later that day, Trala returned home to
Elkton, Maryland and paid his landlord for
two weeks’ rent. He paid in $100 bills,
which the landlord testified was unusual.
App. 1104-05. Trala then left Maryland
and drove to North Carolina with his
girlfriend, Vicky Prince, and her daughter.
App. 1776-77.
On February 10, 2000, Mrs. Bailey
was interviewed by an FBI agent and
confessed her involvement in the Bank
robbery, as well as the 1999 thefts. App.
1360-61.
C.Trala’s Arrest in North
Carolina
On the morning of February 10,
2000, Moorehead City, North Carolina
Patrol Officer, Timothy Guthrie, stopped a
1990 Ford Taurus. Trala was driving and
Prince was a passenger. App. 1440, 1464-
70. When Trala could not produce a
driver’s license, Officer Guthrie asked him
for his name and date of birth. Trala
replied that his name was “Natt Albert
Allen, Jr.” App. 1441. Prince also told
Officer Guthrie that Trala’s name was
“Natt Allen, Jr.” App. 1449. In speaking
with the Officer, Trala stated that he had
over $10,000 in cash in the car, and said it
was proceeds from a recent property deal.
App. 1444.
When Sergeant Felicia Long
arrived on the scene, she spoke to Trala at
the “rear of the vehicle” and he repeated
what he had just told Officer Guthrie.
App. 1963-64. Sgt. Long then spoke to
Prince “at the front of the vehicle.” Prince
initially identified herself as “Michele
Trala,” but later said that her name was
actually Vicky Prince. App. 1465, 1470.
When asked about the cash, Prince initially
stated that the money came from “working
and saving.” App. 1468. When asked the
same question later in the conversation,
she stated that Trala “won it at the races in
Delaware.” App. 1970. However, Prince
changed her story after police told her that
there would be a record of any winnings at
the race track. Prince then said that Trala
“won the money at the slots.” App. 1471.
Prince and Trala were placed under
arrest and police eventually searched the
car where they found $35,123 in cash.
App. 1487-89. Trala was subsequently
turned over to federal authorities in
Delaware and charged with: (1) bank
robbery in violation of 18 U.S.C. §§
2113(a) and (d), and 2 (Count I); (2)
conspiracy to commit bank robbery in
violation of 18 U.S.C. § 371 (Count II);
4 Trala had a different version of the events
that took place on the day of the robbery. He
testified that he showed up for work that
morning, but found the shop empty. App.
1766. While he was cleaning towels, Mr.
Bailey arrived and went into the office area of
the shop. App. 1766-67. When Trala finished
his work, he went into the office and noticed
that Mr. Bailey had a large amount of cash.
App. 1767. When he questioned Mr. Bailey
about the money, Mr. Bailey gave him
approximately $30,000 dollars and told him to
stay quiet about what he had seen. Id.

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and (3) use of a firearm during a crime of
violence in violation of 18 U.S.C. §
924(c)(1) (Count III). App. 36-38.5
D.DNA and Trace Evidence
The sweatshirt and knit cap that
police found just outside the Bank were
sent to the FBI laboratory in Washington,
D.C. App. 1498-99. FBI agents also
collected hair and saliva samples from
Trala and took carpet samples from his
motel home. App. 1492-93, 1504-05.
These samples were sent to the FBI
laboratory for comparison with the
samples from the sweatshirt and knit cap.
App. 1493-94, 1506.
Forensic examination determined
that the hairs taken from the garments
e x hibited th e s a m e m i c r o s co p ic
characteristics as the hairs taken from
Trala and the fibers taken from his carpet.
App. 1591-92. The FBI laboratory also
compared DNA taken from hairs on the
knit cap found near the Bank following the
robbery with DNA taken from Trala’s
saliva sample. The forensic examiner used
a method of DNA typing known as
“PCR/STR” typing. App. 1630, 1633.
The results revealed that the sample taken
from the knit cap was mixed, i.e., it
contained DNA from more than one
person. App. 1639-40. The examiner
determined, however, that there was a
clear majority contributor to the sample,
and that the DNA of the major contributor
matched Trala’s DNA to a reasonable
degree of scientific certainty. App. 1640.
Prior to trial, Trala filed a motion in
limine challenging the admissibility of the
DNA evidence. He argued that the
evidence should be excluded because
PCR/STR typing, as applied to mixed
DNA samples, did not satisfy the standard
for scientific reliability under Federal Rule
of Evidence 702 or Daubert v. Merrell
Dow Pharmaceuticals, Inc., 509 U.S. 579
(1993). After conducting a three-day
evidentiary hearing, the district court
issued a well reasoned and comprehensive
opinion explaining its conclusion that the
expert testimony was admissible.
E.Jury Deliberations
The trial began on Monday,
November 26, 2001. App. 899. By
Friday, November 30, both sides had
rested, and the jury began deliberations at
approximately 1:00 PM. App. 1919. The
first day of deliberations ended at 4:30 PM
due to a juror’s previously scheduled
weekend trip. App. 1919, 1931-3. The
following Mon day, Decem ber 3 ,
deliberations did not beg in until
approximately 1:00 PM because the same
juror was late returning from her trip.
App. 1966. Shortly after 5:00 PM on the
second day of deliberations, the court
asked the deputy clerk to find out if the
jurors wanted to order dinner and continue
their deliberations. App. 1965. The jury
responded with the following question:
“The jury wants to know if they can’t
come to [a] unanimous decision, and this
is before they decide about dinner, is it
5 In addition to these three counts, Mrs.
Bailey was charged with embezzlement in
violation of 18 U.S.C. § 656. App. 38.

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over or will they have to come back?” Id.
The following exchange then took
place between the court and defense
counsel:
THE COURT:[M]y inclination at
this time at 5:05 is to advise the jury that
we’re prepared to order dinner.
. . .
[DEFENSE COUNSEL]: Your
Honor, the difficulty is that [this] is some
expression of . . . possibly not being able
to reach a verdict.
THE COURT:The jury hasn’t
deliberated long enough to even be close
to that point. They didn’t commence their
deliberations until 1:00 o’clock today.
They didn’t start their deliberations until
1:00 o’clock on the day that they got the
case . . . .
[DEFENSE COUNSEL]:Here is
my problem, your Honor. If they asked the
question and we give no response to it one
way or the other, then we put them in a
position.
THE COURT:Of ordering dinner
and continuing their deliberations.
[DEFENSE COUNSEL]:But we’re
not answering their question.
THE COURT:I feel like we’re
answering their question. If they have a
further question to the Court’s response,
we’ll respond at that time.
App. 1966-67. When informed of the
court’s response, the jurors decided to
order dinner. At approximately 8:00 PM,
they returned with a verdict finding Trala
guilty on all charges.6 App. 1967, 1969-
72.
This appeal followed.
II
A. Expert Testimony Relating to
PCR/STR DNA Typing
Trala’s primary argument is that the
district court erred by admitting DNA
evidence linking him to the knit cap found
near the scene of the robbery. He argues
that PCR/STR DNA typing does not meet
the standard for scientific reliability under
Federal Rule of Evidence 702 and Daubert
when applied to mixed DNA samples.
“We review the decision to admit or reject
expert testimony under an abuse of
discretion standard.” Schneider ex rel.
Estate of Schneider v. Fried, 320 F.3d 396,
6 Trala was eventually sentenced to a total
of 322 months imprisonment, five years of
supervised release, a $300 special assessment,
and restitution in the amount of $144,457.
App. 1974-80.

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404 (3d Cir. 2003).7
After careful examination of the
record, we conclude that there was no
abuse of discretion. We hold that the
PCR/STR DNA typing utilized in this case
does in fact meet the standards for
reliability and admissibility set forth in
Federal Rule of Evidence 702 and
Daubert. In Daubert, the U.S. Supreme
Court interpreted and applied Rule 702,
which replaced the common law rule
requiring “general acceptance” for the
admissibility of scientific evidence with a
standard requiring an “assessment of
whether the reasoning or methodology
underlying the testimony is scientifically
valid and of whether that reasoning or
methodology properly can be applied to
the facts in issue.” Daubert v. Merrell Dow
Pharmaceuticals, 509 U.S. at 586, 592-3.
The Court held that “the Rules of
Evidence—especially Rule 702—do
assign to the trial judge the task of
ensuring that an expert’s testimony both
rests on a reliable foundation and is
relevant to the task at hand.” Id. at 597. In
light of this, we note that the district
court’s painstaking opinion provides a
thorough and compelling analysis of the
court’s rejection of Trala’s challenges to
the DNA evidence. We conclude that the
court did not abuse its discretion in
admitting the DNA evidence substantially
for the reasons Judge Sleet sets forth in his
opinion. See 162 F. Supp. 2d 336 (D. Del.
2001).
B. The Jury’s Question about Continuing
Deliberations
Trala also argues that the district
court coerced the jury into reaching a
verdict by giving them a “non-responsive
directive to order dinner” in response to
their inquiry about whether they would
have to continue deliberations the
following day if they were deadlocked.
Br. at 35 (internal quotation marks
omitted). He argues that “[a] reasonable
impression was given to the jurors that
they needed to stay until they reached a
verdict, no matter how long that took.” Id.
Although a district court may not
coerce a jury into reaching a unanimous
verdict, it is well-established that it has
broad discretion to determine how long
jury deliberations should continue. See,
e.g., Govt. of V.I. v. Gereau, 502 F.2d 914,
935-36 (3d Cir. 1974). Thus, “[a]bsent
peculiar evidence indicative of coercion, it
is proper for a judge to instruct a
deadlocked jury to continue deliberations
and attempt to arrive at a verdict.” Id.; see
7 Trala suggests that we should apply the
plenary standard of review to the district
court’s “interpretation of Rule 702’s
application to DNA evidence.” Br. at 64.
However, the court did not interpret Rule 702;
it merely applied the rule in accordance with
Supreme Court and Third Circuit precedent.
Compare Elcock v. Kmart Corp., 233 F.3d
734, 745 (3d Cir. 2000) (exercising plenary
review of the district court’s decision not to
conduct a Daubert hearing, but noting that we
“ordinarily review a district court’s
application of Rule 702, as well as the
decision whether to grant a Daubert hearing,
for abuse of discretion . . . ”).

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also United States v. Grosso, 358 F.2d
154, 159 (3d Cir. 1966), overruled on
other grounds, 390 U.S. 62 (1968). In
Gereau, we affirmed a guilty verdict
where the jurors were instructed to
continue deliberations for at least one
more afternoon after they had already
deliberated for nearly 40 hours. Despite
the length of the deliberations, we found
that there “was no threat that the jury
would be locked up indefinitely unless a
verdict was reached . . . .” Id. at 936;
compare Jenkins v. U. S., 380 U.S. 445,
446 (1965) (per curiam) (finding coercion
where, after two hours of deliberations, the
court told a deadlocked jury: “You have
got to reach a decision in this case.”)
(internal quotation marks omitted).
Our decision in Gereau was based
in part on the fact that the court there
advised the jury that it did not have to
reach a unanimous verdict. Id. However,
such an instruction is not required unless
there is some evidence of coercion.
United States v. Price, 13 F.3d 711, 725
(3d Cir. 1994) (“The mere absence of . . .
an instruction [that the jury can return a
hung verdict] does not in and of itself
suggest coercion.”). Nor does the court
have to set a particular time limit on
deliberations, even after the jury has
expressed that it is hopelessly deadlocked.
In Grosso, for instance, we affirmed a
guilty verdict where the court simply
instructed a deadlocked jury to “keep on
working.” 358 F.2d at 159 (internal
quotation marks omitted). We held that
“[t]he length of time a jury may be kept
together for the purpose of deliberation is
a matter within the discretion of the trial
judge, and his action in requiring further
deliberation after the jury has reported a
disagreement does not, without more,
constitute coercion.” Id. at 160; compare
U.S. v. Fioravanti, 412 F.2d 407 (3d Cir.
1969) (holding that the Allen charge,
where the court instructs jurors in the
minority to question their own judgment in
light of the contrary view held by the
majority, was coercive).
Here, the court did not require the
jurors to stay and order dinner as Trala
suggests. Rather, the judge gave jurors the
option of ordering dinner and continuing
their deliberations into the evening. App.
1965 (“I’ve asked our courtroom deputy to
find out if the jury wants to order dinner.
They’re discussing it.”). The jury then
responded with the following question:
“[I]f they can’t come to [a] unanimous
decision, and this is before they decide
about dinner, is it over or will they have to
come back?” App. 1965. After a brief
discussion with defense counsel, the court
simply reiterated that it was “prepared to
order dinner.” App. 1966. At that point,
the jury, which had only deliberated for
four hours that day (and a total of seven
and a half hours), chose to order dinner
and continue deliberations. App. 1966-67.
Three hours later, they reached a verdict.
This does not suggest a “threat that the
jury would be locked up indefinitely unless
a verdict was reached, nor was there any
indication that jurors should doubt the
judg men ts t h e y h a d a r r iv e d a t
independently.” Gereau, 502 F.2d at 936.
The court merely implied that it was not

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convinced of a deadlocked jury after only
seven and a half hours of deliberations.
This was a proper exercise of the court’s
discretion.
C.Prince’s Statements to Sgt.
Long
Finally, Trala argues that the court
erred in admitting Prince’s conflicting
statements to Sgt. Long regarding her
identity, and the source of money in his
car. He challenges Long’s testimony that
Prince said: (1) that her name was
“Michele Trala”; (2) that her name was
actually Vicky Prince; (3) that the money
in the car was from working and saving;
(4) that Trala won the money at the
racetrack; and (5) that he won the money
playing slot machines. See App. 1465-71.
Trala argues that the admission of these
statements violated the Confrontation
Clause of the Sixth Amendment and
Federal Rule of Evidence 402. We will
address each of these arguments in turn.
1 . T h e C o n f r o n t a t i o n
Clause
Trala concedes that Prince’s
statements were not hearsay because they
were not offered to prove the truth of the
matter asserted. See Fed. R. Evid. 801(c).
Rather, the statements were offered in an
attempt to establish Trala’s consciousness
of guilt. App. 1466. Yet this does not end
our inquiry under the Confrontation Clause
of the Sixth Amendment. As the Supreme
Court noted recently in Crawford v.
Washington,
124 S.Ct. 1354 (2004):
Leaving the regulation of
out-of-court statements to
the law of evidence would
render the Confrontation
Clause powerless to prevent
even the most flagrant
inquisitorial practices. . . .
W h e r e t e s t i m o n i a l
statements are involved, we
do not think the Framers
meant to leave the Sixth
Amendment's protection to
the vagaries of the rules of
evidence, much less to
amorphous notions of
"reliability." 124 S.Ct. at
1364, 1370.
We exercise plenary review over
Confrontation Clause challenges. United
States v. Mitchell, 145 F.3d 572, 576 (3d
Cir. 1998).8
The right of cross-examination is
secured by the Confrontation Clause.
Crawford v. Washington, 124 S.Ct. at
1357; see also Douglas v. Alabama, 380
U.S. 415, 418 (1965). In Crawford, the
Court held that witnesses’ out-of-court
8 The government argues that Trala did not
preserve his Confrontation Clause claim at
trial. We disagree. At trial, defense counsel
specifically objected to Sgt. Long’s testimony
regarding Prince’s statements during the
traffic stop on grounds that it violated the
Confrontation Clause. App. 1466-67.

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statements that are testimonial are barred
by the Confrontation Clause, regardless of
determinations of reliability, unless the
witnesses are unavailable and the
defendant has had a prior opportunity for
cross-examination. Though Crawford
bears generally on the present case because
the evidence in question is testimonial
(“[s]tatements taken by police officers in
the course of interrogations are also
testimonial under ev en a narrow
standard”), its principles are not
contravened because the reliability of
Prince’s out of court statements is not at
issue here. Crawford v. Washington, 124
S.Ct. at 1364. Crawford restates the
constitutional requirement of cross-
examination, or confrontation, as the
p r i m a r y — a n d i n d e e d , t h e
necessary—means of establishing the
reliability of testimonial evidence. “Where
testimonial statements are at issue, the only
indicium of reliability sufficient to satisfy
constitutional demands is the one the
C o n s t i t u ti o n a c t u al l y p r e s c ri b e s:
confrontation.” Id. at 1374.
Crawford does not apply where the
reliability of testimonial evidence is not at
issue, and a defendant’s right of
confrontation may be satisfied even though
the declarant does not testify. For
example, in Tennessee v. Street, 471 U.S.
409, 411-12 (1985), the confession of a
co-conspirator was read into the record
during defendant’s murder trial. It was
introduced through the sheriff who had
obtained it and it was admitted solely to
rebut the defendant’s testimony. Id.
Significantly, the jury was specifically
instructed not to consider the truthfulness
of the statement. Id. After he was
convicted, the defendant challenged the
admission of the confession on grounds
that it violated the Confrontation Clause.
The Supreme Court held that “[t]he
Clause’s fundamental role in protecting the
right of cross-examination . . . was
satisfied by [the Sheriff’s] presence on the
stand.” Id. at 414. It further noted that
“[i]f [the defendant’s] counsel doubted
that [the] confession was accurately
recounted, he was free to cross-examine
the Sheriff . . . .” Id. The Court
acknowledged the possibility that the jury
might improperly consider the truthfulness
of the confession, as in Bruton v. United
States, 391 U.S. 123 (1968), despite the
district court’s instruction to the contrary.
Id.9 Nevertheless, despite its Bruton
concerns, the Court found that the
probative value of the confession
outweighed the possibility of misuse, and
that “there were no alternatives that would
have both assured the integrity of the
trial’s truth-seeking function and
eliminated the risk of the jury’s improper
9 In Bruton, the Court reversed the
defendant’s conviction based on the admission
of a co-defendant’s confession, despite the
fact that the court instructed the jury “that
although [the co-defendant’s] confession was
competent evidence against [him] it was
inadmissible hearsay against [defendant] and
therefore had to be disregarded in determining
[defendant’s] guilt or innocence. 391 U.S. at
125.

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use of evidence.” Id. at 414-416.10
Although the court here did not
expressly caution the jury against
considering the truthfulness of Prince’s
statements, it is clear that no such warning
was required because, unlike the situation
in Street, there was absolutely no risk that
the jury would mistakenly assume the truth
of Prince’s statements. In fact, the
statements were admitted because they
were so obviously false. They established
that Prince was lying to the police about
her identity, as well as the source of the
money in Trala’s car. Moreover, Trala’s
testimony was not to the contrary. Even he
testified that Prince’s name was not
“Michele Trala,” and that the money did
not come from savings, the racetrack, or
playing slot machines. See App. 1767,
1771. Furthermore, Sgt. Long was
available for cross-examination, so defense
counsel therefore had an opportunity to
question her account of the conversation
with Prince. Under these circumstances,
we find that Trala’s rights under the
Confrontation Clause were satisfied.
2.Federal Rule of Evidence
402
Trala also challenges the relevancy
of Prince’s statements under Federal Rule
of Evidence 402 (“Evidence which is not
relevant is not admissible.”); see also Fed.
R. Evid. 401 (“‘Relevant evidence’ means
evidence having any tendency to make the
existence of any fact that is of
consequence to the determination of the
action more probable or less probable than
it would be without the evidence.”). The
district court found that Prince’s
statements were relevant to show Trala’s
consciousness of guilt under United States
v. Palma-Ruedas, 121 F.3d 841 (3d Cir.
1997), overruled on other grounds, United
States v. Rodriguez-Moreno, 526 U.S. 275
(1999). App. 1466. Our review of the
court’s interpretation of Rule 402 is
plenary. Mitchell, 145 F.3d at 576.11
In Palma-Ruedas, a detective came
to the house where the defendant was
located and a woman named Alvarez
answered the door along with defendant,
whose actual name was Omar Torres-
Montalvo. Id. at 856. At trial, the
detective testified that Alvarez told him
that Montalvo’s name was “Carlos
Torres.” We held that the statement was
not being introduced to prove the truth of
the matter asserted, but rather to “show
consciousness of guilt . . . .” Id. We
10 In United States v. Inadi, 475 U.S. 387,
394 n.5 (1986), the Supreme Court cites
Green for the proposition that there is not a
complete overlap between hearsay rules and
the Confrontation Clause.
11 The government also argues that Trala
did not properly preserve his relevance
objection at trial. However, defense counsel
raised a relevance objection when the
government attempted to elicit similar
testimony from Officer Guthrie, but was
overruled by the court. App. 1445-1448. In a
subsequent sidebar conference to discuss
defense counsel’s objections to Sgt. Long’s
testimony regarding Prince’s statements
during the stop, the court stated that it was
“not going to allow [defense counsel] to
reargue . . . the same objection.” App. 1466.
Therefore, the issue of relevance was properly
preserved at trial.

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explained:
Even though Montalvo did
not offer the information
himself, he allowed Alvarez
to offer the false statement
without correcting her. The
s t a t e m e n t w a s t h u s
p r o b a t i v e r e g a r d i n g
cons ciousness of g uilt
because the jury could have
reasonably inferred that
M o n t a l v o w e l c o m e d
Alvarez’s misidentification
of him.
Id. Here, however, Sgt. Long testified that
she questioned Prince at “the front of the
vehicle” after she questioned Trala near
“the rear of the vehicle.” (App. 1463,
1465). Trala and Prince were therefore
separated by at least a car-length when she
made the comments. In Palma-Ruedas,
Montalvo was standing next to the
declarant when she falsely identified him.
Without more than was developed on this
record about the respective positions of
Trala and Prince when Prince made the
challenged statements, the jury could only
speculate as to whether Trala heard Prince
so that he could have corrected Prince’s
misstatements. Absent such additional
evidence tying Trala to Prin ce’s
statements, her statement regarding Trala’s
identity was not relevant to show Trala’s
consciousness of guilt. Because the
evidence was not relevant for any other
purpose, we find that it was improperly
admitted.12 However, as we explain
below, we also conclude that the error was
harmless.
There was an overwhelming
amount of objective evidence linking Trala
to the robbery, including: (1) the similarity
between his build and the description of
the robber; (2) his admission that he
owned the sweatshirt found near the scene
of the robbery; (3) his admission that he
also owned a number of black knit caps
like the one found near the scene of the
robbery; (4) the DNA evidence linking
him to the garments found near the scene
of the crime; (5) Mrs. Bailey’s testimony
regarding her discussions with Trala about
robbing the bank and the location of the
Y2K funds; (6) her testimony that she
recognized Trala during the course of the
robbery, including the red sweatshirt that
he wore; (7) Mr. Bailey’s testimony that he
saw Trala on the morning of the robbery
with a brown paper bag full of money;13
and (8) the unexplained cash in Trala’s
car. In addition, Trala himself lied to
police about his name and the source of
the money in his car, and those statements
were clearly relevant and admissible. See
12 Because we find that the admission of
Prince’s statements constituted legal error, we
need not consider Trala’s additional challenge
under Federal Rule of Evidence 403.
13 This is consistent with eyewitnesses
who said the robber put the stolen money
in a paper bag, and who saw the robber
leave the bank carrying a brown paper bag.
App. 1036, 1054, 1272.

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12
United States v. Levy, 865 F.2d 551, 558
(3d. Cir. 1989) (en banc) (“[D]efendants’
attempt to conceal their true identities by
providing aliases to the police upon arrest
is relevant as consciousness of guilt.”).
Thus, Prince’s statements about his name
and the source of the funds added little if
anything to the evidence against him.
It is also significant that Prince and
Trala both independently told Officer
Guthrie that Trala’s name was “Nate
Allen, Jr.” App. 1449. Although it is also
unclear from the record whether Prince
was near Trala when she made this
statement, this is still relevant to show
consciousness of guilt. The jury could
reasonably infer that Trala and Prince
agreed to lie about Trala’s true identity,
and that they did so to help him avoid
apprehension. This is much stronger
evidence of consciousness of guilt than in
Levy, where we held that “the use of false
identities by all three conspirators . . .
tended to show joint planning and
coordination by the defendants in an
attempt to protect themselves from future
investigation and pursuit.” 865 F.2d at
558. Under the facts of Levy, it was
possible that the use of false names by all
three defendants was merely coincidence.
Here, there is no question that the parties
agreed beforehand that they would refer to
Trala as “Natt Allen, Jr.” Thus, even
though Prince’s statements to Sgt. Long
were inadmissible, the jury heard similar,
a d m i s s i b l e e v i d e n c e o f T r a l a ’s
consciousness of guilt. There is therefore
no merit to Tala’s claim that this error
requires a new trial.14
III
For the reasons set forth herein, we
will affirm Trala’s judgment of conviction
and sentence.15
14 In fact, given the additional evidence of
Trala’s guilt, the prosecutor’s insistence on
admitting what Prince said at the rear of the
car was nothing more than “gilding the lily.”
15 After this matter was submitted, Trala
filed a Motion for Leave to File Supplemental
Briefing in Light of Blakely v. Washington,
124 S.Ct. 2531 (2004). In it he first argues
that the Career Offender Enhancement that he
received “requires a district court’s findings as
to both the nature of the instant offense and
prior convictions, i.e., whether such
convictions qualify as crimes of violence.”
See U.S.S.G. § 4B1.1 (“A defendant is a
career offender if [inter alia] the instant
offense of conviction is a felony that is either
a crime of violence or a controlled substance
offense [and] the defendant has at least two
prior felony convictions of either a crime of
violence or a controlled substance offense.”).
However, whether an offense is a “crime of
violence or a controlled substance offense” is
a legal determination, which does not raise an
issue of fact under Blakely or Apprendi v. New
Jersey, 530 U.S. 466 (2000).
Trala also challenges the district court’s
order of restitution. 18 U.S.C. § 3664(e),
provides: “Any dispute as to the proper
amount or type of restitution shall be resolved
by the court by the preponderance of the
evidence.” However, Blakely and Apprendi
apply only where there is a resolution of
disputed issues of fact that results in a
sentencing enhancement beyond the statutory
maximum. See Blakely, 124 S.Ct. at 2537

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13
(“Our precedents make clear, however, that
the ‘statutory maximum’ for Apprendi
purposes is the maximum sentence a judge
may impose solely on the basis of the facts
reflected in the jury verdict or admitted by the
defendant.” (citations omitted). Here, there
was no contested evidence about the amount
of money that was taken. Therefore, the
amount of restitution was not a disputed issue
of fact under Blakely.

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