United States v. Adrian Lomas
826 F.3d 1097
8th Cir.2016Background
- On June 6, 2014, Adrian Romal Lomas and a juvenile accomplice (G.Y.) robbed a credit union in Davenport, Iowa; surveillance video and the teller identified Lomas as the robber who displayed an imitation firearm and took $4,075.
- After witnesses followed the getaway minivan and police surveillance, Lomas was arrested at a motel on June 11; officers recovered cell phones and, later, a backpack hidden in an alley containing clothing used in the robbery and an altered BB gun.
- Co-defendant G.Y. pleaded guilty and testified against Lomas; Levetzow (the driver) incriminated herself to police and led officers to the hidden backpack; her teenage daughter A.S. also testified about overheard planning and Facebook messages.
- At trial Lomas objected to: (1) testimony about an April 30 incident where he discarded a firearm; (2) certain out-of-court statements by Levetzow; (3) lay/expert interpretations of coded words (“tool”/“unit”); and (4) various Sentencing Guidelines enhancements and career-offender treatment.
- Jury convicted Lomas of bank robbery under 18 U.S.C. § 2113(a); district court applied Guidelines enhancements (brandishing, organizer role, use of a minor) and designated Lomas a career offender, producing a 210–240 or, alternatively, a 151–188 Guideline range; the court imposed a 240-month sentence and expressly stated it would impose the same sentence even without the career-offender designation.
Issues
| Issue | Plaintiff's Argument (Lomas) | Defendant's Argument (Government) | Held |
|---|---|---|---|
| Admissibility of April 30 firearm testimony (prior act) | Testimony was irrelevant and overly prejudicial, offered only to show propensity. | Evidence showed knowledge/preparation, similarity in how firearm was carried, and link to search for a gun before robbery. | Admitted; probative for knowledge/preparation and not substantially outweighed by prejudice. |
| Motion for mistrial over witness mentioning “shots fired” | Reference suggested Lomas was involved in a separate shooting warranting mistrial. | Limiting instruction would cure any prejudice; reference was incidental. | Denied; limiting instruction cured prejudice. |
| Admission of Levetzow’s out-of-court statements (hearsay) | Statements were inadmissible hearsay because declarant did not testify. | Many statements were admissions/adoptive admissions or were elicited/clarified on redirect; others were cumulative. | Admission (or any error) was permissible or harmless given corroborating evidence; not reversible. |
| Lay/expert testimony interpreting “tool”/“unit” as firearm | Testimony was improper expert opinion or improper lay opinion by officer. | A.S.’s lay interpretation based on personal observation; agent’s testimony aided understanding and was brief/cumulative. | A.S. admissible as lay opinion; any improper officer testimony harmless. |
| Career-offender designation based on 2010 Nebraska burglary | Nebraska burglary is not a categorical crime of violence; career-offender status improper. | Court relied on documents to conclude conviction qualified; career-offender applied. | Court need not decide error was harmless because it expressly imposed the same 240-month sentence by upward variance even without career status. |
| Sentencing enhancements (brandishing, organizer, use of minor) | Objections to factual basis for enhancements. | Trial evidence (video, teller, G.Y., A.S.) and PSR support enhancements; defense invited consideration of the non-career Guidelines that included enhancements. | Court’s findings supported by record; enhancements upheld and alternative sentencing rationale adequate. |
Key Cases Cited
- United States v. Yielding, 657 F.3d 688 (8th Cir. 2011) (standard for admissibility of prior-bad-act evidence under Rule 404(b))
- United States v. Kent, 531 F.3d 642 (8th Cir. 2008) (limiting instruction can neutralize prejudicial evidence)
- United States v. Paul, 217 F.3d 989 (8th Cir. 2000) (jurors presumed to follow limiting instructions)
- United States v. Beason, 220 F.3d 964 (8th Cir. 2000) (defendant who ‘opens the door’ may invite otherwise objectionable testimony)
- United States v. Peoples, 250 F.3d 630 (8th Cir. 2001) (limits on lay testimony by law enforcement and improper expert testimony disguised as lay opinion)
- Descamps v. United States, 133 S. Ct. 2276 (2013) (categorical approach to determining whether prior conviction is a predicate offense)
- United States v. Londondio, 420 F.3d 777 (8th Cir. 2005) (harmlessness of cumulative hearsay evidence)
- United States v. Sayles, 674 F.3d 1069 (8th Cir. 2012) (procedural sentencing error harmless where court gives an adequate alternative holding)