UNITED STATES of America, Plaintiff-Appellee, v. Adrian Romal LOMAS, Defendant-Appellant.
No. 15-3194
United States Court of Appeals, Eighth Circuit.
Submitted: April 14, 2016. Filed: June 27, 2016
826 F.3d 1097
Before RILEY, Chief Judge, WOLLMAN and MURPHY, Circuit Judges.
CCDC urges that our remand order should limit the scope of further proceedings. It contends that the remainder of the memorandum of understanding is unambiguous. From that premise, CCDC argues that the only issue before the district court should be whether the parties intended the memorandum to be a binding agreement that can be enforced despite the absence of board approval.
We reject that approach. Assuming for the sake of analysis that the memorandum of understanding is deemed binding and enforceable, this appeal does not raise other issues pressed by Affinity, including whether the memorandum unambiguously specifies the amount of adjusted gross revenue payable by a new owner in the event of a sale by Affinity. Although the district court did state in passing that “the terms of the MOU are unambiguous,” any conclusion about the entirety of the memorandum was not the basis for the district court‘s judgment, and we have no occasion to address it. The district court, moreover, expressly declined to address Affinity‘s alternative contentions that the parties reached no meeting of the minds or that any agreement was the product of mutual mistake. R. Doc. 75, at 10 n.2. We conclude only that summary judgment was not warranted on the grounds stated by the district court.
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For the foregoing reasons, the judgment is reversed, and the case is remanded for further proceedings.
Counsel who presented argument on behalf of the appellant was Heather Quick, AFPD, of Cedar Rapids, IA.
Counsel who presented argument on behalf of the appellee was Clifford R. Cronk, III, AUSA, of Davenport, IA.
A jury found Adrian Romal Lomas guilty of bank robbery, in violation of
On June 6, 2014, Lomas and G.Y., a fifteen-year-old juvenile, robbed a branch of the Family Credit Union in Davenport, Iowa. Lomas, wearing sunglasses, a Chicago Bulls baseball cap, a bandana, and gloves, approached the teller on duty, displayed a pistol tucked into the front waistband of his pants, and demanded “all the money” in the teller drawer. G.Y., wearing a hooded sweatshirt, a bandana, and gloves, stood behind Lomas at the teller counter and passed Lomas a backpack into which Lomas placed the $4,075 that the teller handed over from her drawer. Several surveillance cameras inside the credit union recorded the robbery.
Lomas and G.Y. ran out of the credit union and down the street, where they jumped into a light blue Ford Windstar minivan that was waiting for them with its sliding door open. Natasha Havercamp, who happened to be driving past the area at the time, observed Lomas and G.Y., both with bandanas still obscuring their faces, as they ran to the minivan and leapt inside. Havercamp followed the minivan a short distance, noted the vehicle‘s license plate number, and called the Davenport police department to report the suspicious activity. At about the same time, the Davenport police received a call that the credit union had been robbed. Believing the two incidents were likely related, the police ran the license plate number provided by Havercamp and learned that the minivan was registered to Danielle Levetzow at an address on LeClaire Street in Davenport. Officers proceeded to LeClaire Street, but the minivan was not there. An officer watching the residence from a nearby alley was approached by one of Levetzow‘s neighbors, who agreed to notify police when the minivan returned.
Levetzow, Lomas, and Levetzow‘s two young children returned to LeClaire Street in the minivan later that afternoon; Levetzow‘s neighbor called the police; and officers quickly arrived to secure the area and maintain surveillance of the residence while a search warrant was obtained. Levetzow and the children soon left the house, and police arrested Levetzow and detained the children until Levetzow‘s mother, Cheryl Levetzow (Cheryl), arrived. Although officers continued to watch the residence, when they eventually executed the search warrant, Lomas was not inside the house. One of the officers had earlier seen an individual walking away from the general
In the meantime, Levetzow was taken to the police station and charged with robbery. At the station, Detectives Tim Murphy and Bill Thomas, as well as Sergeant Kevin Smull, interviewed Levetzow about the robbery. Murphy and Smull testified that Levetzow initially denied any knowledge of the robbery and claimed that the $700 in cash she had been carrying was money for rent. After the officers repeatedly accused her of lying, however, she admitted that she was the getaway driver for the credit union robbery. Levetzow revealed details about the robbery, including a description of the clothing worn by the two robbers, whom she identified as Lomas and a man she had just met named “Emanuel.” She told the officers that the backpack used in the robbery had been thrown into the river. After the interview, Levetzow was bailed out of jail by Cheryl, who then drove Levetzow and her children back to the LeClaire Street residence. Cheryl testified that she had obtained the bail money from a grocery bag containing $2,500 in cash from the robbery that Levetzow had stashed in a bathroom cabinet at Cheryl‘s house earlier that day. When the group arrived at the LeClaire Street residence, they found Lomas asleep on the couch.
Although the police had obtained a warrant to arrest Lomas for the robbery, they were unable to locate him, and so on June 11 they obtained a warrant to track the location of Lomas‘s cellular telephone, and, after receiving data from his service provider, they learned that Lomas‘s cell phone was “pinging” near the airport in Moline, Illinois. Officers were also aware that Levetzow had retrieved her minivan from the police impound lot, so they began searching for it in the area near the airport. The police eventually discovered the minivan in a motel parking lot and learned which room Levetzow had rented. While officers were preparing to approach, Lomas exited the motel room and was arrested. Inside the room, officers found Levetzow; G.Y.; and Levetzow‘s three children, including her teenage daughter, A.S. The police arrested G.Y., detained Levetzow, and obtained Levetzow‘s consent to search the motel room, where they seized cell phones belonging to Lomas, G.Y., and A.S. Officers obtained a warrant to search Lomas‘s cell phone and learned that text messages seeking to borrow a “tool” or a “unit” had been sent from the phone to several telephone numbers in the days prior to the robbery.
Two days after Lomas and G.Y. were arrested at the motel, Detective Scott Lansing and another officer interviewed Levetzow again, at which time she admitted that the backpack from the robbery had been hidden and not thrown into the river. She then led the two officers to an alley and pointed to a large bush, from which Lansing recovered and then opened the backpack, which contained the robbers’ clothing, along with an imitation firearm—a BB gun that had been altered to appear real.
G.Y., who had already pleaded guilty to the credit union robbery and was incarcerated at the Iowa State Reformatory, testified that he and Lomas committed the robbery and that Levetzow drove the getaway vehicle. He further stated that he had obtained the BB gun that Lomas had carried in the front waistband of his pants and displayed to the teller during the robbery. He also identified the backpack and its contents as items he and Lomas had used in the robbery.
The district court rejected Lomas‘s pretrial objection to the government‘s introduction of evidence that on April 30, 2014, some five weeks before the credit union robbery, Lomas had discarded a firearm behind the wheel of a parked vehicle and that police had recovered the firearm after they arrested Lomas. The court agreed with the government that this evidence was “relevant and probative” to “explain[] why [Lomas] was looking for a gun in the days . . . leading up to the robbery.” Sally Cerra, whose kitchen window faced the alley, testified that she had seen two men running in an alley behind her residence on April 30 and that one of the men, later identified as Lomas, had removed a firearm from the front waistband of his pants and had placed it on the ground behind the wheel of a parked vehicle. Sergeant Smull testified that he was responding to a call of “shots fired” near a high school on April 30 when he noticed Lomas and another man standing in an alley and detained them both. Smull stated that Cerra informed him about what she had seen and that he then found a .45-caliber firearm beneath the vehicle. Smull also testified that he had observed Levetzow driving the light blue minivan in the area while these events unfolded. Lomas moved for a mistrial, which the district court denied.
Following the entry of the verdict, a Presentence Investigation Report (PSR) was prepared. It recommended a base offense level of 20 for the robbery,
In a sentencing memorandum, the government initially took the position that Lomas‘s 2010 Nebraska burglary conviction was not a crime of violence under the Guidelines career-offender provision because Lomas had burglarized a business, not a dwelling. See
Lomas filed objections to the PSR, challenging the facts on which the aggravating-role, brandishing, and using-a-minor enhancements were based. He also argued that his 2010 burglary conviction under
Lomas thereafter requested a sentence of 151 months, arguing that “[t]he Guidelines, without the career offender designation, would be 151 to 188” months and that a 151-month sentence would “more than adequately address” the sentencing factors raised by the government “in [its] first Sentencing Memo.” The district court disagreed, concluding instead that a 240-month sentence was appropriate, regardless of whether the career offender provision applied. Specifically, the court stated:
I would reach the same sentence either under the Career Offender Guideline, which places the 240 months at the top of the Guideline range, or as a result of an upward variance even if we were considering the range of 151 to 188.... As indicated, the Court does reach this sentence either on the basis of the career offender status or on the basis of dangerousness and likelihood of crimes in the future.
Lomas first argues that the district court erred in admitting the “irrelevant and highly prejudicial” testimony of Cerra and Smull that he had discarded a firearm several weeks before the credit union robbery. We review a district court‘s decision to admit evidence of a prior bad act for abuse of discretion, reversing “only when such evidence clearly had no bearing on the case and was introduced solely to prove the defendant‘s propensity to commit criminal acts.” United States v. Yielding, 657 F.3d 688, 701 (8th Cir. 2011) (internal quotation marks and citation omitted). While evidence of a prior bad act is not admissible to show propensity, it is admissible to show “motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.”
We conclude that the challenged testimony was relevant to the crime charged. It demonstrated that Lomas had knowledge of firearms, that he had carried a similar-looking firearm within weeks of the robbery, and that he had carried the firearm in a fashion similar to that employed by the bank robber—in the front waistband of his pants. In addition, this testimony showed that shortly before the bank robbery, Lomas was associated with Levetzow, an accomplice in the robbery, and her minivan, the getaway vehicle used in the bank robbery. Moreover, Lomas‘s abandonment of the firearm in April 2014 and its subsequent seizure by the police was relevant to show why Lomas was searching for a firearm in the days preced-
We also conclude that the potentially prejudicial effect of the challenged testimony did not substantially outweigh its probative value. Only “evidence that is unfairly prejudicial, that is, [evidence that] tends to suggest decision on an improper basis” will be excluded as substantially more prejudicial than probative. United States v. Myers, 503 F.3d 676, 682 (8th Cir. 2007). “[E]vidence that is merely prejudicial in the sense of being detrimental to a [defendant‘s] case,” on the other hand, is admissible. Id. (citation omitted). There is little question that the testimony at issue here was prejudicial, but it was not unfairly so. Neither Smull nor Cerra testified that Lomas fired, brandished, or used the firearm in any manner that was illegal. Although Lomas‘s efforts to conceal the firearm under the parked vehicle might have suggested some wrongdoing on his part, the district court admonished the jury that the testimony should not be considered as evidence that Lomas‘s possession of the firearm was illegal or that he was connected in any way to the “shots fired” investigation mentioned by Smull. This limiting instruction substantially diminished any danger that the jury would decide the case on an improper basis. See United States v. Kent, 531 F.3d 642, 651 (8th Cir. 2008) (noting that “this Court has been reluctant to find that the evidence was unfairly prejudicial when the district court gave an appropriate limiting instruction“) (citation omitted); United States v. Paul, 217 F.3d 989, 997 (8th Cir. 2000) (noting that “a jury is presumed to follow all instructions“). Accordingly, we conclude that the district court did not abuse its discretion by admitting the testimony that Lomas discarded a firearm in April 2014.
Lomas also contends that the district court abused its discretion by denying his motion for a mistrial after Smull testified that he had been in the area where Lomas discarded the firearm in response to a call of “shots fired” at a nearby high school. See United States v. Nelson, 984 F.2d 894, 897 (8th Cir. 1993) (standard of review). Lomas argues that the “shots fired” testimony improperly suggested to the jury that he was the shooter involved in the incident, which created a risk of undue prejudice that warranted a mistrial. We disagree. After hearing argument from counsel outside the presence of the jury, the district court denied Lomas‘s motion for a mistrial and suggested submitting a limiting instruction to the jury. Defense counsel questioned the adequacy of any limiting instruction, but eventually consented to the court‘s proposed instruction in light of the court‘s denial of a mistrial. The court then directed the jury “to completely disregard any reference to shots fired at a school in your consideration of this case and your deliberations.” The court also cautioned the jury that Lomas was “not here charged with possession of a firearm” and that Smull‘s testimony was not evidence that Lomas “was unable to be in possession of a firearm.”
The “admission of allegedly prejudicial testimony is ordinarily cured by an instruction to the jury to disregard the testimony,” Nelson, 984 F.2d at 897, because the jury is presumed to follow such an instruction, see Paul, 217 F.3d at 997. The district court properly instructed the jury to disregard Smull‘s “shots fired” testimony and to consider the remainder of his testimony only for the limited purpose
Lomas next argues that the district court erred in admitting the alleged hearsay testimony of several witnesses describing statements made by Levetzow, who did not testify at trial. We review a district court‘s evidentiary rulings for abuse of discretion. United States v. Burch, 809 F.3d 1041, 1045 (8th Cir. 2016). A district court‘s error in admitting hearsay evidence is harmless if the “error did not influence or had only a very slight influence on the verdict.” Id. (quoting United States v. Eagle, 498 F.3d 885, 888 (8th Cir. 2007)).
Lomas first challenges the testimony of Detective Kevin Murphy, who stated during redirect examination that when he interviewed Levetzow on the day of the robbery, she admitted that “she knew it was a robbery” and that Lomas “was the robber.” This testimony came in response to defense counsel‘s first broaching during cross examination the subject of Murphy‘s interview with Levetzow on the day of the robbery. Defense counsel elicited Murphy‘s testimony that Levetzow initially denied knowing why she was being interviewed by the police that day, that the officers conducting the interview several times accused Levetzow of lying, that she told the officers that the backpack used in the robbery had been thrown into the river, and that she wanted Lomas “buried.”
“It is fundamental that where the defendant ‘opened the door’ and ‘invited error’ there can be no reversible error.” United States v. Beason, 220 F.3d 964, 968 (8th Cir. 2000) (quoting United States v. Steele, 610 F.2d 504, 505 (8th Cir. 1979)). Murphy‘s redirect testimony was admissible to clarify or rebut the issues first raised by defense counsel on cross-examination, see id. and thus we conclude that the district court did not abuse its discretion by admitting it, see United States v. Noe, 411 F.3d 878, 886 (8th Cir. 2005) (concluding that district court did not abuse its discretion by allowing government to clarify on redirect false impression created by defendant on cross-examination).
Lomas next challenges the testimony of Levetzow‘s teenage daughter, A.S., who stated that she was present while Levetzow and Lomas discussed robbing a bank and that she was present in the motel room after the robbery while Levetzow, Lomas, and G.Y. discussed “where the money was and stuff.” The statements made by Lomas himself and overheard by A.S. are nonhearsay statements or admissions “made by the party” and were properly admitted. See
Lomas makes two additional hearsay arguments. He challenges the testimony of Detective Scott Lansing, who stated that he spoke with Levetzow on June 13, sometime after Lomas had been arrested at the motel, and that Levetzow had remarked that “she knew where the backpack was that contained the outfits which [Lomas and G.Y.] were wearing that day for the robbery.” Lomas also challenges the introduction of screenshots of Facebook private messages exchanged between A.S., G.Y., and another individual shortly after the robbery, in which A.S. states, among other incriminating remarks, “[I]ook up the davenport bank robbery it was [G.Y.] and [Lomas] and my mom drove them.” We need not determine whether the challenged evidence constituted inadmissible hearsay, because any error in admitting it was harmless.
“An erroneous evidentiary ruling is harmless if it does not have a substantial influence on the outcome” of the trial. Yielding, 657 F.3d at 700. The government presented overwhelming evidence that Lomas committed the bank robbery, including the testimony of G.Y., who committed the robbery with Lomas; the testimony of the teller Lomas confronted during the robbery; the recordings from the credit union security cameras; the testimony of A.S., who overheard Lomas planning the robbery and discussing the proceeds therefrom; and the text messages from Lomas‘s cell phone in which he was searching for a “tool” or a “unit” shortly before committing the robbery. In light of this evidence, we conclude that the district court‘s admission of Lansing‘s testimony and A.S.‘s Facebook conversations “did not have a substantial influence on the verdict and was harmless beyond a reasonable doubt.” Id. at 701; see also United States v. Londondio, 420 F.3d 777, 789 (8th Cir. 2005) (noting that admission of hearsay evidence that is cumulative of properly admitted evidence “is not likely to influence the jury and is therefore harmless error“).2
Lomas next argues that the district court abused its discretion by permitting A.S. and Special Agent Jeffrey Huber to testify as lay witnesses that Lomas was referring to a firearm when he used the terms “tool” and “unit” in conversations and text messages. See United States v. Peoples, 250 F.3d 630, 639 (8th Cir. 2001) (standard of review).
As for the testimony of A.S., a lay witness is permitted to express an opinion that is “rationally based on his perception, and helpful to . . . determining a fact in issue.” United States v. Lemons, 792 F.3d 941, 948 (8th Cir. 2015) (citing
Lomas argues that Agent Huber‘s testimony about the meaning of “tool” and “unit” in Lomas‘s text messages was improper because Huber did not observe the text messages as they were occurring and did not testify regarding his personal perceptions, both of which are required for lay opinion testimony to be admissible. The government counters that Huber‘s statements were admissible as expert testimony of a witness whose “knowledge, skill, experience, training, or education” assisted the jury in understanding the evidence.
Although Agent Huber likely would have qualified as an expert on criminal behavior and terminology in light of his credentials, he was not offered as such by the government. Thus, we are doubtful that Huber testified as an expert with respect to the challenged testimony. See
Finally, Lomas argues that the district court erred in applying the Guidelines career-offender provision to calculate his sentence. He contends that because his 2010 Nebraska burglary conviction was not a predicate crime of violence under
At sentencing, the government inquired whether the district court would have imposed the same sentence had the court not found that Lomas was a career offender. The district court responded affirmatively, specifically noting that, after considering the
Lomas contends that the district court‘s alternative sentence is invalid because the court did not resolve his outstanding objections to the brandishing, leader-or-organizer, and use-of-a-minor enhancements that contributed to the 151- to 188-month Guidelines sentencing range. As set forth above, the factual basis for imposing these enhancements was established by the evidence presented at trial. Lomas was identified as the individual who displayed the imitation firearm used during the robbery; the surveillance recordings, as well as the testimony of the teller and G.Y., established that Lomas was the leader or organizer of the offense; and G.Y. testified that he was a minor when the offense was committed.3 The district court noted the objections but “relie[d] upon the record made in the case,” including the PSR, the “memoranda of counsel, [and] the supplemental materials,” to impose the challenged enhancements. See United States v. Esqueda, 599 Fed.Appx. 608, 609 (8th Cir. 2015) (per curiam) (rejecting defendant‘s argument that district court failed to make adequate findings to support application of enhancement where record supported enhancement and the court stated “that it
The judgment is affirmed.
ROGER L. WOLLMAN
UNITED STATES CIRCUIT JUDGE