963 F.3d 1067
11th Cir.2020Background
- Two bank robberies: Noa Bank (Aug. 24, 2016) and Bank of America (BOA) Smyrna (Sept. 7, 2016); both lasted ~1 minute and shared a common modus operandi (inside-out dark t‑shirt, blue/white bandana mask, black bag, silver/black handgun, similar manner of holding gun).
- BOA teller Kathryn Crist had close contact with the BOA robber (about two feet away); surveillance video and other eyewitnesses corroborated clothing, build, and weapon details.
- A GPS device planted in the robber’s bag led police to a cul‑de‑sac ~10 minutes later where officers found Darius Caldwell crouched nearby; a black bag ten feet from him contained a dreadlock wig, bandana, loaded handgun, about $4,000, and the GPS tracker.
- FBI DNA analyst testified that Caldwell was included as a contributor to DNA mixtures on the bandana (LR ~700 billion), wig (LR ~480,000), and handgun (LR ~4.6 million); after trial the FBI disclosed that some likelihood‑ratio testimony deviated from recommended phrasing.
- Caldwell was indicted on two armed‑bank‑robbery counts (18 U.S.C. § 2113), two counts of brandishing a firearm, and one count of being a felon in possession of a firearm; he moved to suppress Crist’s out‑of‑court ID, moved for acquittal arguing BOA was not proven FDIC‑insured, and later moved for a new trial based on the DNA testimony disclosure. The district court denied all motions; this appeal followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of Crist’s out‑of‑court show‑up ID | Show‑up was reliable under the Neil factors (close view, attention, matching description, short delay) | Show‑up was unduly suggestive and tainted any out‑of‑court ID | Suppression denied; even if suggestive, ID was reliable under the totality of circumstances and admissible |
| Sufficiency of evidence that BOA was FDIC‑insured (Rule 29 on Count 3) | Introduced BOA N.A. FDIC certificate and testimony from BOA custodian that certificate covers branches, payments current, no lapse or cancellation | Certificate dated 1999 is stale and without contemporaneous proof it’s insufficient to prove insurance at robbery date | Denial of acquittal affirmed; evidence (certificate + witness testimony + presumption from precedent) was sufficient for a reasonable jury to find FDIC coverage |
| Motion for new trial based on FBI analyst’s likelihood‑ratio phrasing errors (Rule 33) | Deviations were minor wording errors; analyst’s substantive opinions and LR values stand; strong non‑DNA evidence independent of LR language | LR misstatements were newly discovered and materially changed the meaning of DNA strength, warranting a new trial | Denial affirmed; errors would not probably produce a different result—analyst’s conclusions otherwise intact and overwhelming non‑DNA evidence supports verdict |
Key Cases Cited
- United States v. Diaz, 248 F.3d 1065 (11th Cir. 2001) (two‑step test for admissibility of out‑of‑court identifications and reliance on Neil factors)
- Neil v. Biggers, 409 U.S. 188 (1972) (factors for assessing reliability of eyewitness identifications)
- United States v. Maner, 611 F.2d 107 (5th Cir. 1980) (sufficiency standard for FDIC‑insurance proof; low threshold under Cook)
- Cook v. United States, 320 F.2d 258 (5th Cir. 1963) (established permissive presumption/low threshold for proof of FDIC insurance)
- United States v. Munksgard, 913 F.3d 1327 (11th Cir. 2019) (recent precedent on acceptable proof of FDIC insurance, requiring prior/subsequent proof plus testimony)
- United States v. Albury, 782 F.3d 1285 (11th Cir. 2015) (standard for Rule 33 new‑trial motions: newly discovered evidence must probably produce a different result)