United States of America v. Noah Beverly (00-3617); Johnny P. Crockett (00-3618); Douglas A. Turns (00-3741)

*The Honorable Robert H. Bell, Chief United States District Judge for
the Western District of Michigan, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0136P (6th Cir.)
File Name: 04a0136p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
NOAH BEVERLY (00-3617);
JOHNNY P. CROCKETT
(00-3618); DOUGLAS A.
TURNS (00-3741),
Defendants-Appellants.
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; NORRIS, Circuit Judge;
and BELL, Chief District Judge.*
2 United States v.
Beverly, et al.
Nos. 00-3617/3618/3741
_________________
COUNSEL
ARGUED: Richard A. Cline, MITCHELL, ALLEN,
CATALANO & BODA, Columbus, Ohio, Kevin P. Durkin,
TAYLOR & DURKIN, Columbus, Ohio, Gary W. Deeds,
Columbus, Ohio, for Appellants. J. Michael Marous,
ASSISTANT UNITED STATES ATTORNEY, Columbus,
Ohio, for Appellee. ON BRIEF: Richard A. Cline,
MITCHELL, ALLEN, CATALANO & BODA, Columbus,
Ohio, Kevin P. Durkin, TAYLOR & DURKIN, Columbus,
Ohio, Gary W. Deeds, Columbus, Ohio, for Appellants.
J. Michael Marous, David J. Bosley, ASSISTANT UNITED
STATES ATTORNEY, Columbus, Ohio, for Appellee.
_________________
OPINION
_________________
BOGGS, Chief Judge. Noah Beverly, Douglas A. Turns,
and Johnny P. Crockett were indicted for multiple crimes by
a federal grand jury, charging them with conspiracy to
commit armed bank robbery, in violation of 18 U.S.C. § 371,
committing various armed bank robberies, in violation of 18
U.S.C. § 2113(a) and (d), and possessing firearms during and
in relation to these crimes of violence, in violation of 18
U.S.C. § 924(c). After two evidentiary hearings, a jury trial
commenced in which all three defendants were tried together.
On February 8, 2000, the jury returned a verdict of guilty on
all counts against Beverly and Turns. Crockett was found
guilty of conspiracy to commit armed bank robbery, of
robbing Security National Bank, and the Park National Bank
in Hebron, Ohio, and of using a firearm in commission of
those crimes, but was found not guilty of robbing two other
banks with another defendant not involved in this appeal.

-- 1 of 22 --

Nos. 00-3617/3618/3741 United States v.
Beverly, et al.
3
All three defendants have appealed this verdict. Beverly
appeals the introduction of mitochondrial DNA (mtDNA)
evidence against him at trial, arguing that the evidence was
not scientifically reliable and, even if reliable, its probative
value was outweighed by its prejudicial effect. In addition,
Beverly joins the other defendants in bringing a Batson
challenge, arguing that the district court committed clear error
when it granted the government’s peremptory challenge
against an African-American who could have been seated on
the jury panel. Turns appeals the district court’s decision to
join his trial with the other two defendants, and further argues
that the district court abused its discretion in denying his
Rule 14 motion to sever his trial. Turns also contends that the
district court abused its discretion in limiting his examination
of a government witness, that the district court erred in its
denial of his motion for acquittal, and that his sentence of
seventy-one and one half years, largely mandated by the
requirement of consecutive sentencing under 18 U.S.C.
§ 924(c)(1)(D)(ii), is cruel and unusual punishment in
violation of the Eighth Amendment. Crockett appeals his
conviction on the basis of prosecutorial misconduct and
argues that the district court erred in its denial of his motion
for acquittal. In addition, Crockett contends that the district
court abused its discretion in failing to excuse a potential
juror for cause, in admitting testimony regarding his wife’s
pretrial identification of him in a bank surveillance photo, in
admitting into evidence his failure to file income tax returns,
and in limiting his examination of a government witness’s
probation officer. For the reasons set forth below, we affirm
the defendants’ convictions.
I
This case is about a series of bank robberies that occurred
in Ohio 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 Lavelle Rogers and his half-brother Melvin
Warren, Jr.. In each of the seven robberies, either Rogers,
Warren, or both, participated in the event and so testified to
what occurred. Neither Rogers nor Warren are defendants in
this case because they both entered into a plea agreement as
part of a guilty plea to armed bank robbery.
Delaware County Bank and Trust
According to Rogers’s testimony at trial, on September 26,
1994, Rogers and Turns stole a Chevrolet Blazer from a
trucking company and robbed the Delaware County Bank and
Trust in Ashley, Ohio on the following day. Turns waited
outside, feigning mechanical problems, while Rogers, having
borrowed Turns’s gun, went inside and robbed the bank.
Rogers carried a silver pistol provided by Turns. After the
robbery, the two drove to Columbus, Ohio where Turns’s
sister, Starla Turns, had a house. Rogers claimed he gave
Turns $5,000 of the more than $70,000 he took from the
vault.
Rogers was dating Starla and he was planning on leaving
for Disney World with her the next day, so that night Rogers
rented a hotel room near the Columbus airport. When Rogers
realized that it would unwise to attempt to take the gun on the
airplane, he spoke with Turns about what he should do with
it. Turns apparently suggested that Rogers leave it
underneath the bushes near the hotel, where Turns could later
recover it. Turns has a different version. According to the
testimony of FBI Agent Harry Trombitas, Turns told him that
he, Turns, had found the gun in his car after having lent the
vehicle to Rogers. Turns then informed Agent Trombitas
about the weapon, and stashed it under some bushes by this
same hotel while waiting for the FBI to come and pick it up.
In Florida, while visiting Disney World, Rogers and Starla

-- 2 of 22 --

Nos. 00-3617/3618/3741 United States v.
Beverly, et al.
5
used various forms of false identification, which were
allegedly provided to them by Turns.
Within ten days of the robbery, Lisa Dennis, Turns’s
girlfriend, made two round-number cash deposits to her bank
account. The first deposit, made two days after the robbery,
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 that would
explain these deposits. Turns’s entire income during this
period was apparently derived from unemployment benefits
and his girlfriend, Dennis, was only receiving general
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 was $72,500. Turns implicated Rogers,
describing his disguise and noting that he had seen Rogers in
a white Chevrolet Blazer with Kentucky license plates.
Park National Bank in Kirkersville, Ohio
In December 1994, Rogers, his half-brother Melvin
Warren, and Turns drove Warren’s burgundy Cadillac to a
Meijer shopping center in Columbus, Ohio, where Rogers
stole a car. The theft was recorded by surveillance cameras.
Turns, Rogers, and Warren drove to Kirkersville, Ohio.
Rogers and Warren then took the stolen car and drove to the
bank, while Turns waited with Warren’s Cadillac at a nearby
freeway on-ramp. Again, Turns feigned mechanical problems
while Rogers and Warren robbed the Park National Bank,
with Rogers using a gun he had gotten from Turns. Warren
used a gun obtained from Beverly. After robbing the bank,
Rogers and Warren drove the stolen car to the freeway on-
ramp where they shifted into the Cadillac with Turns. Warren,
6 United States v.
Beverly, et al.
Nos. 00-3617/3618/3741
directed by Turns, drove to Turns’s brother’s house, where
the three counted their take and divided it into thirds.
Several weeks after the robbery, Warren and Rogers were
stopped by the police and Rogers used Turns’s driver’s
license as identification. Though Rogers was released, a gun
was recovered from the car and Warren was arrested. The
ownership of the gun was traced back to Turns, who had
purchased the weapon on September 9, 1993. This gun was
allegedly provided to Rogers by Turns prior to the Park
National Bank robbery.
Eight months after the December 30, 1994 robbery, Turns
stated to the FBI that he had been at the aforementioned
shopping center with the Meijer store that day with his
brother and had happened to see Warren and Rogers there.
Turns stated that Warren and Rogers told him details about
the robbery later in the day, including the fact that they had
taken approximately $35,000. The actual amount stolen was
$31,377.
National City Bank
Another bank robbery occurred five months later, on
May 12, 1995, involving Warren, Beverly, and a third man
named Colby. Warren testified that while the three of them
were drinking at Beverly’s house they decided to rob a bank.
Warren, Beverly, and Colby parked at a nearby auto-parts
store and walked into the National City Bank on Lockbourne
Road in Columbus. Once in the bank, they began shouting
for everyone to put their hands up. Beverly carried a
revolver. The robbery netted $3,428. It was filmed by bank
surveillance cameras. Warren identified Beverly as one of the
robbers in the surveillance photographs shown at trial.

-- 3 of 22 --

Nos. 00-3617/3618/3741 United States v.
Beverly, et al.
7
Security National Bank
On May 18, 1995, Warren, Rogers, Beverly, and Crockett
robbed the Security National Bank in Springfield, Ohio. The
four met before the robbery at Beverly’s apartment, where
they prepared disguises, including masks and bandannas.
They then drove together to Springfield in Warren’s tan
Lincoln Town Car. Once in Springfield, the four drove to a
hospital, where Rogers stole a car to use as a getaway vehicle
in the robbery. They found an alley behind some buildings
across the street from the bank, where they parked the
Lincoln. Rogers, Warren, Beverly, and Crockett entered the
bank and Crockett, wearing a pair of pantyhose over his head,
jumped over the teller’s counter and ordered people to the
floor. After robbing the bank, the four used the stolen car to
get to the alley where the tan Lincoln was parked. They all
left their disguises in the stolen car, which was later recovered
by the police. The four escaped with $10,538.47.
During the robbery, bank surveillance cameras were
working and took several photographs. Both Warren and
Rogers were able to identify each other, as well as Beverly
and Crockett, in the photos. The government contends that
Beverly’s pose, disguise, choice of weapon, and use of his left
hand is almost identical in the May 18 and the May 12
robbery photos, and that Beverly’s revolver, which appears in
the pictures, had the same characteristics as the gun recovered
after the November 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”
hat with holes cut in it as a mask. This hat was later
recovered from the abandoned stolen car. It was a hair from
this hat that was sent to the lab for the mitochondrial DNA
test that was ultimately admitted into evidence at trial.
On July 24, 1995, two 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
On July 28, 1995, Rogers, Warren and Turns drove to
Zanesville in Turns’s BMW. Once in Zanesville, the three
drove to a grocery store where Rogers stole a Buick to use as
a get-away vehicle. Rogers and Warren took the stolen car to
the bank, while Turns drove to a nearby school, their pre-
arranged meeting place, and waited. Rogers and Warren
entered the bank, both armed. After getting the money, they
returned to Turns’s car and drove back to Columbus 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 allegedly
stopped. In addition, a local resident spotted the BMW near
the school during the relevant time period. She identified the
make and model, which matched a car that Turns had
purchased on May 26, 1995 in Franklin County, Ohio for
$5,450.
On the day before the robbery, the balance of the bank
accounts of Lisa Dennis, Turns’s girlfriend, totaled $24.34.
However, her account later showed a deposit made three days
after the First National Bank robbery of exactly $1,000. Two
days 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. Neither
Turns nor Dennis filed tax returns in 1994 or 1995.
In the summer of 1995, Turns and his brother went to a gun
show with Rogers. They purchased several weapons there.

-- 4 of 22 --

Nos. 00-3617/3618/3741 United States v.
Beverly, et al.
9
Rogers testified to the fact it was their collective intention to
use these weapons in future robberies.
Huntington National Bank
Only six days after robbing the First National Bank, on
August 3, 1995, Rogers, Turns, and Warren robbed the
Huntington National Bank in Marysville, Ohio. Turns drove
them to Marysville in his BMW. Contrary to their usual
practice, they did not steal a car to use as a get-away vehicle,
but instead 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 went to a pre-arranged place where they were to
meet after the robbery. Rogers and Warren robbed the bank,
stole a vehicle, and met Turns at the pre-arranged spot. They
abandoned the stolen vehicle and drove back to Columbus
with their take of $79,500.
After the Huntington National Bank robbery there were
more round-number deposits made to Lisa Dennis’s account.
Again, Turns described the robbery to the FBI in detail,
without mentioning his involvement.
Park National Bank in Hebron, Ohio
On November 22, 1995, in Hebron, Ohio, Crockett and
Warren robbed the Park National Bank. Crockett and Warren
both had guns when they entered the bank and both were
wearing disguises. Warren identified both himself and
Crockett in the bank surveillance video. After finding dye
packs in some of the money they had taken, Crockett began
throwing the dye packs at the bank employees, who were
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 door
open for Warren to come out of the bank, a car pulled into the
bank parking lot. Crockett panicked and pulled away, leaving
Warren without a means of escape. When Warren emerged
from the bank and realized that Crockett had left, he stole a
Cadillac.
The chief of police saw the Cadillac pulling away from the
bank and left in pursuit, but he ended up losing Warren in the
car chase. Eventually, the stolen Cadillac was recovered.
Inside the car, the police found some of the money stolen
from the bank and a .22-caliber revolver. The revolver turned
out to be the same type of gun used by Beverly in the May 12
and May 18 robberies. The police later recovered a .38-
caliber bullet from the gun fired by Crockett at the tellers in
the bank.
Rogers and Warren were taken into custody by the FBI in
August and December of 1995, respectively, partially as a
result of information given to FBI Agent Trombitas by Turns.
Rogers and Warren eventually cooperated with the FBI, and
ultimately Turns, Beverly, and Crockett were indicted on
July 20, 1999 and charged with conspiracy to commit armed
bank robbery, committing various armed bank robberies, and
for the possession of firearms during and in relation to these
crimes of violence.
II
The three defendants raise many issues, which we will
consider in the following order. All three defendants join in
the Batson challenge, so we will deal with it first in Part III.
We then turn to the novel issue of Beverly’s challenge to the
admissibility of mitochondrial DNA evidence in Part IV.
Turns and Crockett each appeal the denial of their separate
motions for acquittal, and these issues are dealt with in

-- 5 of 22 --

Nos. 00-3617/3618/3741 United States v.
Beverly, et al.
11
Part V. Turns raises three issues peculiar to his trial and
sentence, which we deal with in Part VI. Finally, Crockett
raises a number of evidentiary issues and a claim of
prosecutorial misconduct, which we address in Part VII.
III
Batson Challenge
Beverly, Crockett, and Turns claim that the prosecutor
exercised a peremptory challenge against a potential juror in
a racially discriminatory manner, in violation of the Equal
Protection Clause. See Batson v. Kentucky, 476 U.S. 79
(1986) (prohibiting the exercise of race-based peremptory
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 without Mrs. McKeever, there would not be any
African-Americans on the jury. The prosecutor stated that he
was using a peremptory challenge to remove Mrs. McKeever
because she had a brother who had spent time in prison and
also had a nephew in jail with whom she still had contact. The
district court found that the Government had articulated a
legitimate nondiscriminatory reason for the challenge and
permitted Mrs. McKeever’s removal.
A Batson claim is analyzed in three steps. First, the
defendant must make a prima facie showing that the
prosecutor removed a potential juror for a discriminatory
reason. If the defendant makes this showing, the second step
requires the prosecutor to articulate a nondiscriminatory
reason for the removal. Assuming that the prosecutor does
so, the third step requires the trial court to determine whether
the opponent of the peremptory strike has proven purposeful
discrimination. See, e.g., United States v. Lucas, 357 F.3d
599, 609 (6th Cir. 2004).
12 United States v.
Beverly, et al.
Nos. 00-3617/3618/3741
In reviewing the government’s race-neutral explanation, we
need not find that the reason given is persuasive, or even
plausible. Ibid. However, the reason cannot be inherently
discriminatory. Ibid. Furthermore, the district court has the
responsibility to assess the prosecutor’s credibility under all
of the pertinent circumstances, including the final make-up of
the jury. We review that determination of fact for clear error.
United States v. Bartholomew, 310 F.3d 912, 919 (6th Cir.
2002). In this case, the prosecutor gave a plausible and race-
neutral explanation for exercising a peremptory challenge
against Mrs. McKeever, which the district court accepted.
There was no evidence of discriminatory intent inherent in the
government’s proffered explanation, and a peremptory
challenge is not unconstitutional solely because it has a
racially disproportionate impact. Hernandez v. New York,
500 U.S. 352, 359-60 (1991). Under these circumstances, the
district court did not commit clear error in overruling the
Batson challenge.
IV
Admissibility of Mitochondrial DNA Testing
Beverly, against whom mitochondrial deoxyribonucleic
acid (mtDNA) testing was used in this trial, argues that the
district court erred in admitting expert testimony concerning
mtDNA evidence. Specifically, Beverly argues that mtDNA
testing is not scientifically reliable because the laboratory that
did the testing in this case was not certified by an external
agency, the procedures used by the laboratory “sometimes
yielded results that were contaminated,” and the particular
tests done in this case were contaminated. In addition,
Beverly argues that even if the mtDNA evidence is
determined to be sufficiently reliable, its probative value is
substantially outweighed by its prejudicial effect. In this part
of his argument, Beverly focuses on the statistical analysis

-- 6 of 22 --

Nos. 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 evidence. According to
Beverly, Dr. Melton, the government’s expert, should only
have been allowed to testify that Beverly could not be
excluded as the source of the sample in question.
We review the district court’s decision to admit expert
testimony for an abuse of discretion. Kumho Tire Co. v.
Carmichael, 526 U.S.137,152 (1999); First Tenn. Bank Nat.
Ass’n v. Barreto, 268 F.3d 319, 331 (6th Cir. 2001).
Federal Rule of Evidence 702 sets forth the requirements
for the admissibility of expert testimony as follows:
If scientific, technical, or other specialized knowledge
will assist the trier of fact to understand the evidence or
to determine a fact in issue, a witness qualified as an
expert by knowledge, skill, experience, training, or
education, may testify thereto in the form of an opinion
or otherwise, if (1) the testimony is based upon sufficient
facts or data, (2) the testimony is the product of reliable
principles and methods, and (3) the witness has applied
the principles and methods reliably to the facts of the
case.
The wording of the rule reflects the now-standard inquiry set
out in 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 Co., 243 F.3d 244, 250 n.4 (6th Cir.),
cert. denied, 534 U.S. 822 (2001). Therefore, we review this
case under Daubert, which set forth a non-exclusive checklist
of factors for trial courts to use in assessing the reliability of
scientific expert testimony. These include 1) whether 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 standards and controls; and 5) whether
the technique or theory has been generally accepted in the
scientific community. Daubert, 509 U.S. at 592-95;
Hardyman v. Norfolk & W. Ry., 243 F.3d 255, 260 (6th Cir.
2001). If the evidence is deemed to be reliable and relevant,
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 may be helpful to provide some general background
concerning mtDNA analysis. Generally speaking, every cell
contains two types of DNA: nuclear DNA, which is found in
the nucleus of the cell, and mitochondrial DNA, which is
found outside of the nucleus in the mitochondrion. The use
of nuclear DNA analysis as a forensic tool has been found to
be scientifically reliable by the scientific community for more
than a decade. The use of mtDNA analysis is also on the rise,
and it has been used extensively for some time in FBI labs, as
well as state and private crime labs. See, e.g., Micah A.
Luftig & Stephen Richey, Symposium: Serenity Now or
Insanity Later?: The Impact of Post-Conviction DNA Testing
on the Criminal Justice System: Panel One: The Power of
DNA, 35 New Eng. L. Rev. 609, 611 (2001). This technique,
which generally looks at the differences between people’s
mitochondrial DNA, has some advantages over nuclear DNA
analysis in certain situations. For example, while any given
cell contains only one nucleus, there are a vast number of
mitochondria. As a result, there is a significantly greater
amount of mtDNA in a cell from which a sample can be
extracted by a lab technician, as compared to nuclear DNA.
Thus, this technique is very useful for minute samples or
ancient and degraded samples. Ibid. In addition,
mitochondrial DNA can be obtained from some sources that
nuclear DNA cannot. For example, mtDNA can be found in
shafts of hair, which do not have a nucleus, but do have

-- 7 of 22 --

Nos. 00-3617/3618/3741 United States v.
Beverly, et al.
15
plenty of mitochondria. Nuclear DNA can only be retrieved
from the living root of the hair where the nucleus resides.
United States v. Coleman, 202 F. Supp. 2d 962, 965 (E.D.
Mo. 2002) (accepting expert testimony by Dr. Melton, the
expert in this case, and admitting evidence based on mtDNA
testing).
On the other hand, mtDNA is not as precise an identifier as
nuclear DNA. In the case of nuclear DNA, half is inherited
from the mother and half from the father, and each individual,
with the exception of identical twins, almost certainly has a
unique profile. MtDNA, by contrast, is inherited only from
the mother and thus all maternal relatives will share the same
mtDNA profile, unless a mutation has occurred. Ibid.
Because it is not possible to achieve the extremely high level
of certainty of identity provided by nuclear 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 sixteen thousand base
pairs, is considerably shorter than nuclear DNA, which has
approximately three billion pairs. Within the mtDNA, two
noncoding regions are targeted – Hypervariable-1 (HV1) and
Hypervariable-2 (HV2). Each of these regions is about 300
letters in code length and is a region that has a mutation rate
five to ten times greater than that of nuclear DNA. Usually
there is a one to two percent variance of mtDNA sequence
between unrelated individuals. Luftig & Richey, supra, at
612. It has been estimated that mutation within the mtDNA
control region is one nucleotide difference every 300
generations. National Commission on the Future of DNA
Evidence, The Future of Forensic DNA Testing: Predictions
of the Research and Development Working Group 7, Nat’l
Inst. of Justice (2000). But see Ann Gibbons, Calibrating the
Mitochondrial Clock, 279 Science 28 (1998) (discussing
research estimating that mutations occur as frequently as
every 40 generations). This academic dispute does not affect
this case directly. In general, the slower the mutation rate, the
16 United States v.
Beverly, et al.
Nos. 00-3617/3618/3741
more people who will have the same mtDNA pattern, and
vice-versa. However the figures presented to the jury were
from a database of actual DNA patterns collected by forensic
scientists. The mechanics of the analysis involves a process
similar to that used with nuclear DNA. Coleman, 202 F.
Supp.2d at 969.
This court has not until now had the opportunity to rule on
the admissibility of mtDNA testing. However, mtDNA
testing has been admitted into evidence by several state courts
and has been upheld on review. See, e.g., State v.
Underwood, 518 S.E.2d 231 (N.C. Ct. App. 1999); State v.
Scott, 33 S.W.3d 746 (Tenn. 2000); State v. Council, 515
S.E.2d 508 (S.C. 1999); People v. Klinger, 713 N.Y.S. 2d 823
(N.Y. Crim. Ct. 2000); Williams v. Maryland, 679 A.2d 1106
(Md. 1996).
2. Mitochondrial DNA in this Case
The district court in this case held a very extensive hearing
in order to determine the admissibility of mtDNA evidence at
trial. The court determined that the techniques had been
established and accepted by the scientific community,
accepted by the courts, and had been subject to peer review.
Beverly now argues that the district court abused its
discretion on the basis of three objections.
Beverly argues that Dr. Melton’s laboratory, which had
analyzed the sample in this case, has never been certified by
an external agency. This point was raised in the pretrial
hearing, and, although there is no legal requirement that
Dr. Melton’s lab be so certified, the district court did question
Dr. Melton on this point. Laboratories doing DNA forensic
work are accredited through the American Society 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 through the process the

-- 8 of 22 --

Nos. 00-3617/3618/3741 United States v.
Beverly, et al.
17
following spring. Furthermore, Dr. Melton’s own credentials
are considerable. Not only has she been working with
mtDNA since 1991, she has a Ph.D from Pennsylvania State
University in genetics; 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 procedures would
sometimes yield results that were contaminated, and that
furthermore, the sample analyzed in this particular case was
contaminated. Testimony given by Dr. Melton and
Dr. Kessis, who was Beverly’s expert at trial, supported
Beverly’s general contention, but no evidence demonstrated
that any contamination in this case affected the results of the
analysis. Dr. Melton testified that “[we] occasionally have
what we call sporadic contamination,” probably as a result of
residue on a piece of equipment brought into the lab.
However, Dr. Melton was confident that no contamination of
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 reagent blank, used in
a different test tube, which was a control in the experiment.
Therefore, the actual data relied upon in this case, obtained
from the sequencing machine, did not indicate any presence
of a contaminant.
Finally, the district court carefully considered during the
pretrial hearing the question of whether the relevance of this
evidence outweighed its probative value. In particular,
Beverly argued that the jury would associate mitochondrial
DNA analysis with nuclear DNA analysis and give it the
same value, in terms of its ability to “fingerprint” a suspect.
The district court, however, decided that this issue was more
appropriately dealt with through a vigorous cross-
examination, and in fact that was exactly what occurred at
trial. Moreover, the court noted the important probative value
that this evidence added to the trial. Finally, the court
18 United States v.
Beverly, et al.
Nos. 00-3617/3618/3741
separately considered the scientific reliability of the statistical
analysis offered by the government, concluding that:
The predictive effect of the statistical analysis is based
upon a formula which is apparently recognized in the
scientific community and used in a variety of scientific
contexts, and it has been used specifically here in the
analysis of mitochondrial DNA results. The Court
concludes that it’s an accepted and reliable estimate of
probability, and in this case, it led to results, interpreted
results, which substantially increase the probability that
the hair sample is the hair of the defendant in this case.
Based on the record compiled in the district court’s careful
and extensive hearing on this issue, there was no abuse of
discretion in admitting the mtDNA testing results. The
scientific basis for the use of such DNA is well established.
Any issues going to the conduct of the specific tests in
question were fully developed and subject to cross
examination. There was no error in finding that the testing
methods, and Dr. Melton’s testing in particular, were
sufficiently 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 type of evidence
could not identify individuals with the precision of
conventional DNA analysis. Nevertheless, any particular
mtDNA pattern is sufficiently rare, especially when there is
no contention that the real culprit might have been a
matrilineal relative of the defendant, that it certainly meets the
standard for probative evidence: “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.” Fed. R. Evid. 401.
The statistical evidence at trial showed that, at most, less than
1% of the population would be expected to have this mtDNA

-- 9 of 22 --

Nos. 00-3617/3618/3741 United States v.
Beverly, et al.
19
pattern. Even an article critical of mtDNA stated the most
frequent pattern applies in no more than 3% of the population.
Erica Beecher-Monas, The Heuristics of Intellectual Due
Process: A Primer for Triers of Science, 75 N.Y.U.L. Rev.
1563, 1655 n.535 (2000). It would be unlikely to find a
match between Beverly’s hair and the hair of a random
individual. The testimony was that, 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 hair recovered
from the bank robbery site, and that Beverly did have the
same pattern, and thus could not be excluded as the source of
the hair. Finding Beverly’s mtDNA at the crime scene is
essentially equivalent to finding that the last two digits of a
license plate of a car owned by defendant matched the last
two numbers of a license plate of a getaway car. It would be
some evidence — not conclusive, but certainly admissible.
We find the same here.
V
Motion for Acquittal
During the trial, at the close of the government’s case and
again at the close of all evidence, both Turns and Crockett
made a Rule 29(a) motion for acquittal. On both occasions
the district court denied their motions, and both defendants
now appeal that decision.
The relevant question in assessing a challenge to
evidentiary sufficiency is “whether, after viewing the
evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.” Jackson v. Virginia,
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 competent,
20 United States v.
Beverly, et al.
Nos. 00-3617/3618/3741
may sustain a conviction under this deferential standard of
review.” United States v. Adams, 265 F.3d 420, 423 (6th Cir.
2001) (citations omitted).
1. Crockett
Crockett contends that there is insufficient evidence in the
record to establish that he was involved in a conspiracy to
commit bank robberies as set forth in Count One of the
indictment. To establish a conspiracy, in violation of 18
U.S.C. § 371, the government must prove beyond a
reasonable doubt that there was “an agreement between two
or more persons to act together in committing an offense, and
an overt act in furtherance of the conspiracy.” United States
v. Crossley, 224 F.3d 847, 856 (6th 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,
which requires the government to prove that: “1) the
conspiracy described in the indictment was wilfully [sic]
formed, and was existing at or about the time alleged; 2) the
accused willfully [sic] became a member of the conspiracy;
3) one of the conspirators thereafter knowingly committed at
least one overt act charged in the indictment at or about the
time and place alleged; and 4) that overt act was knowingly
done in furtherance of some object or purpose of the
conspiracy as charged.” United States v. Kraig, 99 F.3d
1361, 1368 (6th Cir. 1996). The government need not show
a formal written agreement; a simple understanding between
the parties 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 participant in every phase of
the conspiracy.” United States v. Christian, 786 F.2d 203,
211 (6th Cir. 1986) (quoting United States v. Cuni, 689 F.2d
1353, 1356 (11th Cir. 1982)). The defendant need only
“know of the conspiracy, associate himself with it and
knowingly contribute his efforts in its furtherance.” United
States v. Barger, 931 F.2d 359, 369 (6th Cir. 1990) (quoting
United States v. Luxenberg, 374 F.2d 241, 250 (6th Cir.

-- 10 of 22 --

Nos. 00-3617/3618/3741 United States v.
Beverly, et al.
21
1967)). “A conspiracy may be inferred from circumstantial
evidence that can reasonably be interpreted as participation in
the common plan.” Ibid. (quoting United States v. Strong,
702 F.2d 97 (6th Cir. 1983)).
The government presented a considerable amount of
evidence establishing Crockett’s active participation in the
conspiracy, particularly through the testimony of Rogers and
Warren. For example, both Rogers and Warren testified to
Crockett’s participation in the robbery at the Security
National Bank, specifically describing his participation in
creating disguises used during the robbery and in conducting
the robbery itself. In addition, there was photographic
evidence of his presence at the Security National Bank.
Warren also testified to Crockett’s participation in the robbery
of the Park National Bank in Hebron. There also was
evidence that Crockett fired his gun during the course of that
robbery, as a bullet matched to his gun was recovered from a
file cabinet in the bank. A rational trier of fact could have
reasonably relied upon any of this evidence to find that
Crockett was a willing participant in the conspiracy charged
in Count One of the indictment.
2. Turns
Turns argues that the government's evidence was
insufficient because “the credibility of Rogers and Warren is
suspect to the point that reasonable minds should reject their
testimony as a matter of law.” Turns’s Brief at 24. However,
determining the credibility of witnesses is a task for the jury,
not this court. See United States v. Hilliard, 11 F.3d 618, 620
(6th Cir. 1993) (noting that this court does not weigh
evidence, make credibility determinations, or substitute its
judgment for that of the jury). In reviewing the denial of a
motion for acquittal, we must “refrain from independently
judging the credibility of witnesses or [the] weight of the
evidence.” United States v. Walls, 293 F.3d 959, 967 (6th
Cir. 2002). Moreover, all reasonable inferences are to 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
the testimony of Warren and Rogers. Moreover, Turns
provided the FBI with a detailed account of the robberies, his
gun was found with two of the robbers, he provided false
identification to a co-conspirator, and he made several
purchases and bank deposits directly after three of the
robberies to which he was linked. The evidence against Turns
was sufficient for a rational trier of fact to have found Turns
guilty.
VI
A. Severance of Turns’s Trial
Turns contends that the district 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
entirely separate from the alleged conspiracy that existed
between Rogers, Warren, and Crockett that, according to
Turns, dominated in this case. We do not find this argument
persuasive.
Rule 8(b) of the Federal Rules of Criminal Procedure
permits two or more defendants to be charged in the same
indictment “if they are alleged to have participated in the
same act or transaction or in the same series of acts or
transactions constituting an offense or offenses.” All of the
defendants committed bank robberies with Rogers and
Warren during the course of the conspiracy and their
testimony was admissible against all of the defendants,
including Turns. The robberies were a series of offenses that
were conducted over a relatively short period of time and
performed using a similar pattern of behavior. The district
court, therefore, did not err in joining the trial of Turns with
that of Crockett and Beverly.

-- 11 of 22 --

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 court held that the joinder of
two defendants was improper under Rule 8(b). In Hatcher,
both defendants, Manetas and Hatcher, were jointly indicted
for federal narcotics crimes. Although both defendants had
been charged with three counts relating to the possession and
distribution of heroin, one of the defendants had also been
charged with three counts relating to the possession and
distribution of cocaine in an entirely unrelated series of
offenses. This court held that since there was “no connection
between Manetas and the cocaine-related charges against
Hatcher,” the joinder of the two defendants was improper.
Ibid. The court further noted that “[t]he joinder of multiple
defendants is proper under Rule 8(b) only if each of the
counts of the indictment arises out of the same act or
transaction or series of acts or transactions . . . .” Ibid.
The case before us now is distinguishable from Hatcher,
because each bank robbery can easily be viewed as part of
one ongoing set of transactions, linked together by Rogers
and Warren. Furthermore, we have held that “a group of acts
or transactions constitutes a ‘series’ if they are logically
interrelated,” and that a “group of acts or transactions is
logically interrelated, for instance, if the acts or transactions
are part of a common scheme or plan.” See United States v.
Johnson, 763 F.2d 773, 776 (1985) (noting that several other
circuits have held similarly and citing United States v.
Corbin, 734 F.2d 643, 649 (11th Cir. 1984); United States v.
Cavale, 688 F.2d 1098, 1106 (7th Cir. 1982); United States v.
Ford, 632 F.2d 1354, 1371-72 (9th Cir. 1980)). Given the
common scheme involved in this case, the district court did
not abuse its discretion in joining Turns’s trial with that of
Beverly and Crockett, pursuant to Rule 8(b).
Turns also argues that the district court erred in denying his
motion to sever the trial, brought under Rule 14 of the Federal
Rules of Criminal Procedure. Severance of a joint trial is
permitted, if joinder is prejudicial. Fed. 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 for severance if it appears that a
defendant or the government is prejudiced by a joinder of
offenses or of defendants.”) (internal quotation marks
omitted). We review a denial of severance by the district
court for a clear abuse 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 argues that his trial was prejudiced by being joined
with the other defendants since the credibility of the
testimony of Rogers and Warren, the government witnesses
who placed Turns at the scene of the crime, was bolstered by
additional pieces of incriminating and corroborating evidence
in the case against Beverly and Crockett. For example, in
Crockett’s case, the government presented a photograph taken
during one of the bank robberies, which was purported to be
of Crockett while he was in the process of robbing the bank.
In Beverly’s case, there was mtDNA evidence presented that
linked Beverly to one of the robberies. These pieces of
evidence corroborated the testimony given by Rogers and
Crockett, although the evidence would have been
inadmissible in a trial focused solely on Turns.
Turns’s contention that Rogers’s and Warren’s testimony
was bolstered during the trial by corroborating evidence
presented in the case against Beverly and Crockett is
unpersuasive. We have stated in Causey, 834 F.2d at 1288,
that “a defendant is not entitled to severance simply because
the evidence against a co-defendant is far more damaging
than the evidence against him.” Moreover, a defendant does
not have a right to a separate trial, merely because his
likelihood of acquittal would be greater if severance were
granted. See United States v. Gallo, 763 F.2d 1504, 1526 (6th
Cir. 1985) (citing United States v. Stirling, 571 F.2d 708, 733

-- 12 of 22 --

Nos. 00-3617/3618/3741 United States v.
Beverly, et al.
25
(2d Cir. 1978); United States v. Larson, 526 F.2d 256, 260
(5th Cir. 1976)). “Absent a showing of substantial prejudice,
spillover of evidence from one case to another does not
require severance.” Ibid. (citing United States v. Ricco, 549
F.2d 264, 270-71 (2d Cir. 1977)). Turns has not made a
showing of substantial prejudice in this case, and thus the
district court did not abuse its discretion by denying Turns’s
motion for severance.
B. The Cross-Examination of Anthony Rogers
Turns contends that the district court abused its discretion
by not allowing him to question Rogers on cross-examination
about his alleged attempt to sexually molest Turns’s twelve-
year-old daughter. We review a trial court’s rulings 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, that he
attempted to molest my client’s twelve-year old daughter.
She was twelve-years old at the time . . . .” The government
objected at this point, arguing that this information was
irrelevant and therefore inadmissible. Turns’s counsel
responded that the information was crucial to Turns’s defense
and that it was “not being offered for impeachment purposes.”
Defense counsel went on to explain that this information was
relevant to Turns’s motivation for going to the FBI and
providing information on Rogers and Warren. The district
court questioned Turns’s counsel further as follows:
The Court: Again, what difference does it make what
his motive was in going to the FBI?
26 United States v.
Beverly, et al.
Nos. 00-3617/3618/3741
Turns’s Counsel: Isn’t it always important when the
government is trying to prove a case against somebody
what somebody’s motive is?
The Court: What the motive is is the motive for the
bank robberies and the conspiracy.
The district court subsequently sustained the objection. Later
in the trial, during Turns’s cross-examination of Rogers,
Turns’s counsel again tried to question Rogers about his
alleged sexual assault 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
abuse of Turns’s daughter related to why Rogers was
appearing as a government witness against Turns. The
district court again decided that the testimony was
inadmissible, stating in relevant part:
I am 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 extremely prejudicial
to the government. So I am going to adhere to my earlier
ruling, and you’re not permitted to ask such questions.
Later, when the issue was raised again, defense counsel told
the court that he would specifically like to ask Rogers: “Isn’t
it true that you knew Doug Turns was aware of your sexual
misconduct with his daughter, and that’s why you falsely
accused him of these bank robberies?” Before ruling on
whether this question could be asked, the court asked counsel
if he had any information indicating that Mr. Rogers was
aware 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 heard about the
allegation when Turns testified himself that Rogers had
molested his daughter, which prompted him to turn Rogers in
to the FBI. Turns now argues that the district court committed
constitutional error in denying Turns the ability to prove bias.

-- 13 of 22 --

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 pointed out by Turns in his
brief, the Supreme Court has noted that the “cross-
examination of a witness is a matter of right.” Alford v.
United States, 282 U.S. 687, 691 (1931). Furthermore, the
Court has subsequently stated that “[c]ross-examination is the
principal means by which the believability of a witness is
subject to exploration at trial, and is ‘always relevant as
discrediting the witness and affecting the weight of his
testimony.’” Davis v. Alaska, 415 U.S. 308, 316 (1974)
(holding that precluding a defendant from cross-examining a
key prosecution witness to show bias violated the defendant’s
constitutional right to confront the witness testifying against
him). However, the right to cross-examine is not absolute.
United States v. Atisha, 804 F.2d 920, 929-30 (6th Cir. 1986).
Trial judges have latitude to “impose reasonable limits on
such cross-examination based on concerns about, among
other things, harassment, prejudice, confusion of the issues,
the witness’ safety, or interrogation that is repetitive or only
marginally relevant.” United States v. Blakeney, 942 F.2d
1001, 1022 (6th Cir. 1991) (emphasis omitted). See also
United States v. Broadus, 7 F.3d 460, 465 (6th Cir. 1993).
In this case the trial court did not abuse its discretion in
ruling that this information was inadmissible, as it was only
marginally relevant and highly prejudicial. It was not
obviously relevant for purposes of demonstrating bias,
because even if Rogers had sexually molested Turns’s child,
there was no evidence that Rogers had ever been accused of
doing so, or knew that anyone suspected him of committing
such an offense. Unless Rogers had been confronted, there
would be no reason for him to be particularly biased against
Turns. The information more accurately explains why Turns
would be biased against Rogers, and that is irrelevant to this
inquiry. Any evidence of such a heinous act is likely to be
prejudicial. Furthermore, any error in the district court’s
ruling would be harmless, since Turns shared his personal
28 United States v.
Beverly, et al.
Nos. 00-3617/3618/3741
conviction that Rogers had molested his daughter during his
own testimony.
C. Turns’s Sentence
Turns argues that his sentence of 858 months, or 71 1/2
years, largely mandated by the requirement of consecutive
sentencing under 18 U.S.C. § 924(c), is cruel and unusual
punishment, in violation of the Eighth Amendment. In
particular, Turns argues that his sentence is “grossly
disproportionate” to his crime of having driven the getaway
car in four bank robberies and provided false identification
documents, especially given that he had no prior criminal
record and supplied critical information to the FBI about the
crimes during its investigation.
Since a constitutional challenge to a sentence raises a
question of law, we review Turns’s claim de novo. United
States v. Flowal, 163 F.3d 956, 963 (6th Cir. 1998). Turns
relies principally on the Supreme Court case of Enmond v.
Florida, 458 U.S. 782 (1982), in which the Court vacated a
death sentence that had been imposed on the driver of a
getaway car in a double murder. In Enmond, the Court
reasoned that the sentence did not serve the “two principal
purposes” that the death penalty is intended to serve:
retribution and deterrence. Id. at 798. The Court reasoned
that since the defendant “did not kill or attempt to kill” the
victims, his “culpability [was] plainly different from that of
the robbers who killed,” and thus the sentence did not serve
the goal of retribution. Ibid. Furthermore, the defendant “did
not [have] any intention of participating in or facilitating a
murder,” and “it seems likely that ‘capital punishment can
serve as a deterrent only when murder is the result of
premeditation and deliberation.’” Id. at 799 (quoting Fisher
v. United States, 328 U.S. 463, 484 (1946) (Frankfurter, J.
dissenting)). Finally, “[u]nless the death penalty when

-- 14 of 22 --

Nos. 00-3617/3618/3741 United States v.
Beverly, et al.
29
applied to those in Enmund’s position measurably contributes
to one or both of these goals, it ‘is nothing more than the
purposeless and needless imposition of pain and suffering,’
and hence an unconstitutional punishment.” Id. at 798
(quoting Coker v. Georgia, 433 U.S. 584, 592 (1977)).
The “narrow proportionality principle,” means that only
“extreme sentences that are grossly disproportionate to the
crime are prohibited.” Flowal, 163 F.3d at 963-64. A
plurality of the Court rejected the defendant’s assertion that
his life term without parole was disproportionate because it
was his first felony conviction. Harmelin v. Michigan, 501
U.S. 957, 994 (1991). Instead, the Court observed that the
defendant had been convicted of possession of more than 650
grams of cocaine and held that Michigan could determine that
the seriousness of the offense warranted the severe sentence.
Id. at 990.
Here, too, Turns has never been convicted of a felony
before. However, he was convicted of participating in four
separate armed bank robberies. Even though his role was to
drive the getaway car, he was fully aware of the crime he was
participating in and thus his culpability is not diminished.
Furthermore, at least one of the guns used in the course of the
robberies was traced back to Turns, who had purchased it in
1993 and had given it to Rogers. Turns was sentenced to five
years for the first of four counts of armed bank robbery
brought pursuant to 18 U.S.C. § 2113 (a) and (d) and to
twenty years for the remaining three counts, to run
consecutively. No one of these sentences is intrinsically
“grossly disproportionate” to the crime of armed bank
robbery. Mandating consecutive sentences is not an
unreasonable method of attempting to deter a criminal, who
has already committed several offenses using a firearm, from
doing so again. See Harmelin, 501 U.S. at 994 (stating that
mandatory penalties are not “unusual in the 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 defendant argued that his thirty-two-year sentence
for two convictions under 18 U.S.C. § 924(c) violated the
Eighth Amendment’s prohibition on cruel and unusual
punishment. The panel addressed the merits of the
defendant’s claim, even though it did not appear that his
counsel had raised this issue at the sentencing hearing, which
would ordinarily preclude review, stating that it was “satisfied
that the Eighth Amendment did not bar [the defendant’s]
sentence.” Id. at 751. The court also took note of the fact that
in a similar challenge, the Ninth Circuit had held that a
defendant’s sentence based on his conviction under 18 U.S.C.
§ 924(c), which accounted for twenty-five years of his total
sentence, was not cruel and unusual. Ibid. (citing United
States v. Parker, 241 F.3d 1114, 1117-18 (9th Cir. 2001)).
In this case, although the length of time to be served by
Turns, as required by 18 U.S.C. § 924(c), is severe, it would
appear to serve the twin goals of retribution and deterrence,
without being grossly disproportionate to the several offenses
committed. The Supreme Court has never held that a
sentence to a specific term of years, even if it might turn out
to be more than the reasonable life expectancy of the
defendant, constitutes cruel and unusual punishment. 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 principle here. But see
Ramirez v. Castro, No. 02-56066, 2004 WL 868517 (9th Cir.
Apr. 19, 2004) (holding 25 years-to-life sentence for three
shoplifting convictions, two of which occurred in 1991,
violated the Eighth Amendment).

-- 15 of 22 --

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 Mrs. Parks,
who was his wife when he was arrested, but not when he
committed the offense for which he was identified. In
addition, Crockett appeals the district court’s admission of
FBI Agent Trombitas’s testimony, as it pertained to the
identification made by Mrs. Parks.
Following Crockett’s arrest in July 1999, FBI Agent
Trombitas went to Crockett’s home in order to interview
Crockett’s wife, Mrs. Parks. Trombitas first informed Mrs.
Parks that her husband had been arrested earlier in the day for
his involvement in several bank robberies. Agent Trombitas
then showed her a photograph that was taken during the bank
robbery at the Security National Bank, which occurred on
May 18, 1995, approximately two years before Crockett and
Mrs. Parks were married, but nevertheless during their
acquaintance. 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 motion to suppress. As a result,
Judge Graham held a pretrial hearing on the admissibility of
Mrs. Parks’s identification. At the pretrial hearing, Trombitas
testified as to the circumstances under which the
identification was made. Trombitas explained that he took
out the photograph, placed it in front of her and asked, “do
you recognize that person there?” According to Trombitas,
Mrs. Parks picked up the photograph, and with one hand on
her mouth, said “oh, my God, that looks like Johnny.” At that
point, Trombitas noticed her eyes tearing up and asked her to
reaffirm the identification, saying: “so that looks like
Johnny?” Ibid. Mrs. Parks responded “yes, it does, it’s him,
and I’m not going to lie for him.” Ibid. At this point, 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 on the back of the photograph. Judge
Graham ruled that, based upon the totality of the
circumstances, the photographic identification procedure was
sufficiently reliable to permit the witness to testify.
Later on, at trial, the government represented to the court
that the FBI and the postal investigative service had “gone to
great lengths” to try to serve Mrs. Parks with no success. As
a result, the prosecution sought to introduce this pretrial
identification through Agent Trombitas’s testimony. Crockett
objected on the ground that this was hearsay. However, the
court agreed with the government that Mrs. Parks’s
identification, based on Trombitas’s testimony, was
admissible as an excited utterance, an exception to the
hearsay rule.
Ultimately, after Trombitas had given his testimony, Mrs.
Parks testified at the trial. She recanted her identification of
Crockett, although she admitted that she had told Agent
Trombitas when he interviewed her after Crockett’s arrest,
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
380, 383 (6th Cir. 1982). The burden rests on Crockett to
demonstrate that the pretrial identification procedure was
impermissibly suggestive. United States v. Hill, 967 F.2d
226, 230 (6th Cir. 1992). If Crockett can demonstrate that the
police performed an unduly suggestive photographic lineup,
then the trial court must determine, in light of all the
circumstances, whether the unfair suggestiveness was
conducive to a “very substantial likelihood of irreparable
misidentification.” Simmons v. United States, 390 U.S. 377,
384 (1968); Hill, 967 F.2d at 230. The Supreme Court has

-- 16 of 22 --

Nos. 00-3617/3618/3741 United States v.
Beverly, et al.
33
listed factors that a court should weigh in determining
whether an identification is reliable, even though an unduly
suggestive identification procedure may have been used.
These factors are: 1) the witness’s opportunity to view the
criminal at the time of the crime; 2) the witness’s degree of
attention, 3) the accuracy of the witness’s prior description of
the criminal; 4) the level of certainty demonstrated at the
confrontation; and 5) the time between the crime and the
confrontation. Neil v. Biggers, 409 U.S. 188, 198-200 (1972)
(stating that the “likelihood of misidentification . . . violates
a defendant's right to due process,” not a suggestive line-up
per se).
Before ruling on the admissibility of this evidence, the
district court in this case carefully considered the reliability of
the identification. The judge noted that there was only one
photograph, that the witness did not observe the offense, but
was certainly familiar with the suspect, and that the
photograph was of “very good quality . . . clearly portray[ing
Crockett’s] facial features, as well as all of the other
characteristics of his physical anatomy.” Although these
observations are not necessarily helpful in evaluating all of
the Biggers factors outlined above, they do properly address
the question of reliability, the fundamental inquiry.
This was not a typical police photo spread in which a
witness is asked identify an otherwise-unknown perpetrator
based solely on observation at the time of the crime. In this
instance, Mrs. Parks was being asked whether the bank
surveillance picture in fact depicted someone she knew very
well and would readily recognize. The Biggers factors are not
particularly helpful in a case such as this, where the
identification has been made by someone close to the suspect.
Rather, we should be guided by cases in which identifications
have been made by relatives or close friends. United States
v. Saniti, 604 F.2d 603 (9th Cir. 1979), held that two
roommates of the accused could properly be permitted 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. Borelli, 621 F.2d 1092 (10th
Cir. 1980) (holding that a trial court did not abuse its
discretion by admitting into evidence identification testimony
of defendant’s stepfather who recognized the defendant in a
bank surveillance photo).
In this case, although Mrs. Parks was provided with only a
single photograph, it was not presented in a suggestive
manner. She was not asked “is this your husband?” The
identification was not likely to have produced a
misidentification, given Mrs. Parks’s familiarity with the
defendant at the time when the picture was taken.
Furthermore, given her relationship to the defendant, she
would be unlikely to be biased against him, and would have
every reason not to identify Crockett to the authorities, if
there was any doubt. The district court, therefore, did not
commit clear error in denying Crockett’s motion to suppress
this pretrial identification.
2. Excited Utterance.
The district court separately analyzed the question of
whether Agent Trombitas would be allowed to testify about
the statements made by Mrs. Parks during his interview, in
which she identified Crockett as one of the men in the bank
surveillance photo. It is undisputed that Trombitas’s
testimony with regard to Mrs. Parks’s identification of
Crockett was hearsay; what is disputed is whether the
comments were “excited utterances” and therefore within an
exception to the hearsay rule. Federal Rule of Evidence
803(2) provides that “a statement relating to a startling event
or condition made while the declarant was under the stress of
excitement caused by the event or condition” is not barred by
the hearsay rule. The excited utterance rule requires that
1) there be an event startling enough to cause nervous
excitement; 2) the statement be made before there is an
opportunity to contrive or misrepresent; and 3) the statement
be made while the person in under the stress of the excitement

-- 17 of 22 --

Nos. 00-3617/3618/3741 United States v.
Beverly, et al.
35
caused by the event. Haggins v. Warden, Fort Pillow State
Farm, 715 F.2d 1050, 1057 (6th Cir. 1983). See also United
States v. Winters, 33 F.3d 720, 722-23 (6th Cir. 1994).
The district court found that Mrs. Parks’s statements met
the three requirements of our excited utterance doctrine.
First, viewing the “photograph of the individual that she
recognized as her husband committing a bank robbery” was
a startling event. Second, according to Trombitas’s
testimony, Mrs. Parks uttered the words “oh, my God, that
looks like Johnny,” as soon as she saw the photograph, and
therefore before she could have had an opportunity to
“contrive or misrepresent.” Third, Mrs. Parks identified
Crockett in her very first statement upon seeing 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 moment. The district court did not abuse its
discretion in its admission of Trombitas’s testimony as it
related to Mrs. Parks’s pretrial identification.
B. Admissibility of Crockett’s Income Tax Returns
Crockett contends that evidence presented at trial by the
government reflecting the fact that he did not file a tax return
in 1994 or 1995 was irrelevant and prejudicial. Crockett
made a timely objection to the admission of this evidence on
these grounds. The court decided to allow the evidence to be
presented, albeit with a limiting instruction to the jury,
intended to cure any concerns over the potentially prejudicial
nature of this information. The instruction given by the court
was as follows:
Ladies and gentlemen, let me explain the limited nature
of the evidence that you are hearing about this
certification of an absence of tax return. None of these
defendants is charged with any offense relating to 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 returns.
This evidence is being offered only for the limited
purpose of assisting you in determining what income
they may have had during the years in question, and
that’s the only purpose for which the evidence is being
used.
We review the district court’s decision regarding the
admission of evidence for an abuse of discretion. United
States v. Denton, 246 F.3d 784, 788 (6th Cir. 2001). “Even
if the trial court abuses its discretion, a new trial is not
required unless [the] ‘substantial rights’ of a party are
affected.” United States v. Bonds, 12 F.3d at 540, 554 (6th
Cir. 1993) (citing Fed. R. Crim. P. 52(a); Rye v. Black &
Decker Mfg., 889 F.2d 100, 103 (6th Cir. 1989)). That is, “an
abuse of discretion that does not affect substantial rights is
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 1995 was irrelevant for
two reasons. First, Crockett points out that he was not on trial
for any illegal activity in 1994. Second, no evidence was
offered by the government to demonstrate that he had spent
more money than he could have earned without being
required to file an income tax return during the relevant time
period. Crockett also argues that whatever potential relevance
this evidence had was outweighed by its prejudicial effect,
although he does not elaborate further as to how the evidence
was prejudicial.
Prior to submitting this information with regard 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 after

-- 18 of 22 --

Nos. 00-3617/3618/3741 United States v.
Beverly, et al.
37
the Security National Bank robbery. Crockett’s failure to file
an income tax return in 1995 can be considered to be relevant:
if Crockett’s legal income was insufficient to require a return
to be filed, it would seem unlikely that someone making such
a small income would be able to buy a car for $12,500 in
cash. Crockett’s failure to file a tax return in 1994, however,
is less relevant, although it might be seen as demonstrating
that Crockett did not have a large income in 1994 that could
have explained purchases made in 1995. In any case, given
the district court’s clear instructions to the jury and warning
that this evidence was not intended to show that the defendant
had committed tax fraud, the evidence would not have had a
prejudicial impact on Crockett’s trial, affecting his substantial
rights. The district court, therefore, did not abuse its
discretion in admitting evidence 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 review a trial court’s rulings on the scope of
cross-examination for an abuse of discretion. United States
v. Chance, 306 F.3d 356, 385 (6th Cir. 2002).
During the course of the trial, Crockett asked the district
court to approve the issuance of a subpoena for the court’s
probation officer, 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 extent, a probation officer should be permitted to
testify. S.D. Ohio Crim. R. 32.2(b). The rule further states,
in relevant part:
(d) The Court shall authorize a Probation or Pretrial
Services Officer to produce records or 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
Court finds there has been a particularized showing of a
compelling need for such disclosure 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 shall be authorized to testify or to
produce records, the authorization shall be limited to
only those matters directly relevant to the demonstrated
need. The Court’s Order shall identify the records which
shall be produced and the subject matter of the testimony
which is authorized.
S.D. Ohio Crim R. 32.2(d) - (e)(1). In order to make the
necessary determinations pursuant to the rule, the court held
a hearing regarding the possible testimony of Ms. Jensen. At
the hearing, Turns represented to the court that he wished to
question Ms. Jensen for the purpose of attacking Rogers’s
credibility by showing that Rogers had made statements to
Ms. Jensen that contradicted his testimony at trial. The line
of questioning related primarily to information found in
Rogers’s presentencing report, for which Ms. Jensen had
interviewed Rogers. However, the district court found that
Turns had not laid a proper foundation in Rogers’s testimony,
except with respect to Rogers’s substance abuse, since Turn’s
attorney had not drawn Rogers’s attention to his prior
allegedly inconsistent statements in the report. For this
ruling, the court relied on Federal Rule of Evidence 613(b),
which states in relevant part:
Extrinsic evidence of a prior inconsistent statement by a
witness is not admissible unless the witness is afforded
an opportunity to explain or deny the same and the
opposite party is afforded an opportunity to interrogate
the witness thereon, or the interests of justice otherwise
require.

-- 19 of 22 --

Nos. 00-3617/3618/3741 United States v.
Beverly, et al.
39
The district court determined that Crockett’s counsel had
demonstrated a compelling need for such testimony and
reviewed Crockett’s cross-examination of Rogers in order to
determine whether a proper foundation had been laid. On the
basis of that review, the court limited Crockett’s examination
of the probation officer to matters relating to substance abuse
and prohibited Crockett from questioning the probation
officer about information relating to Rogers’s mental and
emotional health.
Crockett now contends that the district court’s decision to
limit the examination of probation officer Jensen denied him
a fair trial. He maintains that the district court could not first
rule that there has been a particularized showing 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 that evidence. Such contradictory rulings
would violate the local rule that governed the hearing on Ms.
Jensen’s trial testimony. However, Federal 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 inconsistency.
Crockett’s lawyer failed to mention the pre-sentence report to
Rogers in any context other than the latter’s denial of any
substance abuse. The Federal Rules of Evidence preempt
local court rules. Therefore, the judge correctly limited the
probation officer’s testimony to the one topic that had been
linked to Rogers’s pre-sentence report.
D. Challenge for Cause
Crockett urges this court to hold that the district court
abused its discretion in failing to excuse a potential juror for
cause. Crockett stated a challenge for cause against a juror
who had once worked at the London, Ohio Correctional
Institution, where Crockett had previously been incarcerated.
40 United States v.
Beverly, et al.
Nos. 00-3617/3618/3741
Crockett indicated that he recognized the man. The district
court questioned the potential juror about whether he
recognized anyone in the courtroom, but the man denied
recognizing anyone. Based on this response, the court denied
the challenge for cause. Later, Crockett excused the same
juror with his last peremptory strike.
Whether or not Crockett’s challenge for cause was
meritorious, the Supreme Court’s decision in United States v.
Martinez-Salazar, 528 U.S. 304 (2000), forecloses Crockett’s
claim. “[A] defendant’s exercise of peremptory challenges . . .
is not denied or impaired when the defendant chooses to use
a peremptory challenge to remove a juror who should have
been excused for cause.” Id. at 317. See also United States
v. Quinn, 230 F.3d 862, 865 (6th Cir. 2000). Furthermore,
Crockett does not complain about the jurors who actually
decided the case and thus has failed to establish that he had an
insufficient number of peremptory challenges to remove all
of the jurors that he wished. Crockett suggests that it was
necessary for the district court to have explicitly determined
that Crockett would not have used his final peremptory
challenge for a noncurative purpose, yet he does not cite any
law in support of this proposition.
E. Prosecutorial Misconduct
Crockett contends that he is entitled to a new trial because
of prosecutorial misconduct. In particular, Crockett points to
a great many comments (seventy in total) made by the
prosecutor during his closing argument, which Crockett
considers to constitute improper vouching for government
witnesses, improper testimony, improper commenting on
Crockett’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’s

-- 20 of 22 --

Nos. 00-3617/3618/3741 United States v.
Beverly, et al.
41
statements are cause for concern, ultimately it does not appear
that the prosecutor’s behavior amounts to reversible error.
Although Crockett lists a myriad of allegedly improper
statements in his brief, his only objections at trial to the
prosecutor’s closing argument attacked the following
statements:
And if you listen to the defense counsel, Agent
Trombitas has now become a co-conspirator along with
Mr. Rogers and Mr. Warren because he gave them
information and set them up, things that they could tell.
Not only is Agent Trombitas an agent, but he’s become
a co-conspirator here by giving them information that
they can do. . . . Ladies and gentlemen, why Mr.
Crockett did what he did, only he can answer.
And if either one of them [prosecution witnesses] get
caught in a lie, they face the possibility of 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 objections for plain
error. See United States v. Jackson-Randolph, 282 F.3d 369,
384 (6th Cir. 2002); United States v. Modena, 302 F.3d 626,
634 (6th Cir. 2002).
We review allegations of prosecutorial misconduct under a
two-step process. First we decide if the statement was
improper; if the answer to that question is yes, we must
consider whether the statement was “flagrant.” United States
v. Francis, 170 F.3d 546, 549 (6th Cir. 1999). To determine
if the statements here reaches that level, effectively rendering
Crockett’s trial fundamentally unfair, this court considers the
following factors: 1) whether the remarks tended to mislead
the jury or to prejudice the accused; 2) whether the remarks
were isolated or extensive; 3) whether the remarks were
deliberately or accidentally placed before the jury; and 4) the
42 United States v.
Beverly, et al.
Nos. 00-3617/3618/3741
overall strength of the evidence against the accused. United
States v. Green, 305 F.3d 422, 429-30 (6th Cir. 2002);
Francis, 170 F.3d at 549-50 (citing United States v. Monus,
128 F.3d 376, 394 (6th Cir. 1997)). In examining
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 (1985) (holding that it is
critical to examine the statements at issue within the context
of the entire record); Francis, 170 F.3d at 552 (noting that
the determination of whether a prosecutor’s behavior
constitutes prejudicial error must be made in the context of
the whole trial). The district court overruled Crockett’s
objections with respect to the statements that appear above.
Crockett objects to the statement “why Mr. Crockett did what
he did, only he can answer,” as an impermissible comment on
his failure to testify. However, when viewed in context, that
does not appear to have been the intent of the prosecutor’s
statement. The sentences around the statement 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 gentlemen, why
Mr. Crockett did what he did, only he can answer. But
he figured probably he didn’t get arrested in ‘95 or ‘96,
so he was okay, that these guys haven’t snitched on him.
It appears that the prosecutor was responding to defense
counsel’s characterization that “the government says this man
robbed four banks, he stuck around Columbus for five years,
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 proper for the prosecutor to counter defense
counsel’s seemingly plausible theory that Crockett would not
have stayed in the area, had he actually been guilty of the
robberies.
From the trial transcript, we can infer that Crockett’s
attorney objected to the comment about Agent Trombitas

-- 21 of 22 --

Nos. 00-3617/3618/3741 United States v.
Beverly, et al.
43
because he felt it was an unfair characterization of his
argument to the jury. This comment is simply a rhetorical,
albeit somewhat florid, argument that the testimony of Agent
Trombitas could only be discounted if the jury believed that
he was in fact conspiring with the prosecution witnesses by
providing them with information that they otherwise only
could have known if Crockett had indeed been conspiring
with them. This is certainly a possible inference from the
defense argument, and there was no impropriety in the
prosecutor’s rhetorical means of countering it. See Green,
305 F.3d at 430 (stating that 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 that they could spend “the rest of their
life in prison.” Both had testified that they had a plea
agreement, which required them to testify truthfully. The jury
could certainly infer that there would be the potential for
serious consequences if the witnesses lied, but the prosecutor
technically went beyond what had been presented as evidence
by stating they would go to prison for life. However, the
remark does not meet the standards for reversal set out in
Green. The remark did not mislead the jury, nor prejudice the
accused. It was an isolated, extravagant remark that asserted
slightly more than could be supported in the record. Finally,
in the case of Crockett, who is the only defendant who
objected to this particular remark, the evidence of his guilt
was indeed overwhelming, including in particular the
damning photograph, as well as the consistent testimony of
Rogers and Warren, which the jury accepted with respect to
each of the defendants. Considering all of these factors, we
cannot say that this prosecutorial conduct constituted
reversible error.
We review the remaining sixty-eight comments for plain
error. See Young, 470 U.S. at 14, 16 (1985) (holding that
although the prosecutor had made improper statements
44 United States v.
Beverly, et al.
Nos. 00-3617/3618/3741
amounting to error, the error was not reversible under plain-
error review since “[v]iewed in context, the prosecutor’s
statements . . . were not such as to undermine the fundamental
fairness of the trial and contribute to a miscarriage of
justice”). None of the remaining comments could be
characterized as misconduct that “so infected the 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 Crockett, Beverly, and Turns.

-- 22 of 22 --