George Edward Gipson appeals from a final judgment entered in the United States District Court
1
for the District of Minnesota upon a jury verdict finding him guilty of two counts of bank robbery in violation of 18 U.S.C. § 2113(a). Gipson was sentenced to 78 months imprisonment on each count, to be served concurrently, and three years of supervised release. In addition, he was ordered to pay $24,551 in restitution and $200 in special assessments.
United States v. Gipson,
No. 01-CR-342 (D.Minn. Apr. 29, 2003). For reversal, Gipson argues that: (1) under
Daubert v. Merrell Dow Pharmaceuticals, Inc.,
Jurisdiction was proper in the district court based upon 18 U.S.C. § 3231. Jurisdiction is proper in this court based upon 28 U.S.C. § 1291. The notice of appeal was timely filed pursuant to Fed. R.App. P. 4(b).
Background
The following summary of the background facts is based upon the evidence presented at Gipson’s trial.
Bank robbery on June 7, 2001
On June 7, 2001, shortly before 3:00 p.m, a man wearing a black mask, a white shirt, blue jeans, and a black baseball cap with pink lettering entered the Firstar Bank in Hugo, Minnesota. At the time, two female tellers were working behind the counter and no one else was in the main area of the bank. The masked man walked directly to the counter, stated: “This is a robbery, get down,” and vaulted over the counter. The masked man ordered the two tellers to “get on the floor,” and they obeyed. He took approximately $18,000 in cash from the area behind the counter. While the tellers were on the floor, one of them began to cry. The other looked up at her and was ordered by the man to get her head down. She feared that he was going to kick her in the head. The man placed the money in a bag, jumped back over the counter, and fled. After he left, one of the tellers triggered a foot alarm behind the counter.
Around the same time, Jean Nadeau was in her car, approaching the Firstar Bank in Hugo to deposit a check. She was unaware that the bank had been robbed. As she pulled up to the driveway of the bank, she observed a man exit the bank holding a bag. She observed the man drop his hat and stop approximately ten feet in front of her car. He was “kind of shuffling, trying to decide whether he should get his hat.” Trial transcript at 199. During this time, he looked directly at Nadeau. He then left without picking up his hat. A short time later, one of the police officers responding at the scene noticed a black baseball cap with pink lettering lying on the ground in the middle of the bank driveway. The baseball cap was seized as evidence and sent to the Minnesota Bureau of Criminal Apprehension (BCA) Laboratory on June 14, 2001.
On June 13, 2001, Nadeau was interviewed by Sergeant Gary Swanson of the Washington County (Minnesota) Police Department regarding her observations on June 7, 2001, at the Firstar Bank. According to Swanson, Nadeau described the man she saw as in his mid-30s, 5'9" to 5'10", approximately 150 to 160 pounds, wearing a white shirt and blue jeans, and carrying a bag. She also stated that she believed she would recognize him if she were to see him again.
Bank robbery on August 29, 2001
On August 29, 2001, at approximately 1:25 p.m., a white male wearing a black mask, a green shirt, blue jeans, white latex gloves, and carrying a black bag entered the S & C Bank in Harris, Minnesota. Two female bank employees were working behind the counter, and one female bank employee was working at the front desk. The masked man ordered the three bank employees to get down on the floor, and they obeyed. He slid over the bank counter and began taking money, which he placed in the black bag. In the process, he grabbed some bait money and triggered *693 an alarm. He then jumped back over the counter and exited the bank.
Meanwhile, Lawrence Eckl, a volunteer firefighter, was home with his wife playing cribbage when his police scanner indicated that the S & C Bank had been robbed. Eckl, who lives close to the S & C Bank, went to his window and saw a masked man exit the bank, run down the street, and get into a red GM car. Eckl grabbed his scanner and cell phone, ran out to his truck, and began driving up and down the streets of Harris looking for the same red car. 2 When he spotted the car, Eckl drove up directly behind it and wrote down its license plate number. Eckl called the police on his cell phone, reported his observations of the suspect and the car, and continued to follow the car. At one point, the car pulled over at a corner onto the left side of the road. Eckl drove past the car slowly enough to double check the license plate number he had written down. After passing the car, Eckl began turning around, at which point the car drove off. Eckl continued to follow it in his truck. A short time later, Eckl observed the red car pull into the driveway of a game farm and stop. Eckl drove his truck alongside the red car and looked directly at the driver, who was “scrunched way down in his seat.” Trial transcript at 65. After Eckl and the driver of the red car looked directly at each other, the driver sped away. During this encounter, Eckl again checked the license plate number. He attempted to continue following the car, but it was traveling too fast. Eckl called the police and again reported the license plate number of the car and the direction it was traveling when he lost sight of it.
A radio bulletin was sent out to area police to be on the lookout for a 1988 maroon Buick Skylark, license plate number 258LNJ, suspected of involvement in the robbery of the S & C Bank. Approximately twenty minutes later, a police officer on patrol spotted a car matching the description in the bulletin. The officer pulled the car over and radioed for back up. The driver, later identified as Gipson, was arrested on three outstanding arrest warrants. No evidence of the S & C Bank robbery was found in the car.
Photographic line-up identification
On September 19, 2001, Sergeant Swanson prepared two photographic line-ups, each containing six photographs. Gipson was the only person appearing in both lineups. One line-up contained a photograph of Gipson taken on August 29, 2001. The other line-up contained a photograph of Gipson taken on December 17, 2000. The August 2001 photograph showed Gipson with longer hair, a mustache, and a goatee beard. The December 2000 photograph showed him with shorter hair and a mustache, but no beard.
On September 19, 2001, Swanson again met with Nadeau. At his request, she again described her observations of the man in the driveway of the Firstar Bank in Hugo on June 7, 2001. Swanson then handed her the photographic line-up containing the August 2001 photograph of Gipson and asked her if she recognized anyone. Nadeau immediately returned the line-up to Swanson, stating that all the men in the photographs were too old and their hair was too long.
On September 25, 2001, Investigator Wayne Johnson of the Washington County (Minnesota) Sheriffs Department met with Nadeau and showed her the photographic line-up containing the December 2000 photograph of Gipson. This time, Nadeau focused on the photograph of Gipson, but *694 indicated that he appeared younger and heavier than the man she saw at the bank. Johnson suggested that she imagine him older and thinner. Nadeau then began using her fingers to cover up Gipson’s hair. Upon seeing her do that, Johnson gave her some business cards to assist her. Na-deau thereafter positively identified Gipson as the man she saw in the driveway of the Firstar Bank in Hugo on June 7, 2001. 3 DNA testing
As stated above, a black baseball cap with pink lettering was seized as evidence from the scene of the June 7, 2001, robbery at the Firstar Bank in Hugo and was sent to the BCA Laboratory on June 14, 2001. On September 11, 2001, Dolores Schoenbauer, a forensic scientist in the Biology section of the BCA Laboratory, began performing DNA analysis on the baseball cap. Schoenbauer was able to extract a mixture of human DNA from the headband portion of the baseball cap. She then created a profile of the predominant DNA within that mixture of human DNA. In order to create that DNA profile, she used AmpF/STR Profiler Plus (Profiler Plus) and AmpF/STR Cofiler (Cofiler) multiplex kits, which employ the Sort Tandem Repeat (STR) DNA profiling methodology. On September 20, 2001, Schoen-bauer issued a written report regarding the profile of the predominant DNA extracted from the headband of the baseball cap. On October 11, 2001, a blood sample was taken from Gipson and transported to the BCA Laboratory for DNA testing. Again using Profiler Plus and Cofiler kits, Schoenbauer created a profile of Gipson’s DNA. Based upon her findings, she concluded that, at twelve examined areas of DNA, the profile of Gipson’s DNA matched the profile of the predominant DNA extracted from the headband of the baseball cap. 4
Procedural background
On November 20, 2001, Gipson was charged in a two-count indictment with (1) robbing the Firstar Bank in Hugo, Minnesota, on or about June 7, 2001, and (2) robbing the S & C Bank in Harris, Minnesota, on or about August 29, 2001. Gipson filed numerous pretrial motions, including (1) a motion based upon Daubert to suppress the DNA evidence linking him to the baseball cap found at the scene of Hugo bank robbery and (2) a motion to suppress Nadeau’s identification of him from the photographic line-up shown to her on September 25, 2001. A magistrate judge 5 held a hearing on these and other pretrial motions and issued a report and recommendation on February 11, 2002. United States v. Gipson, No. 01-CR-342 (D.Minn. Feb. 11, 2002) (hereinafter “Magistrate Judge’s Report”).
Regarding Gipson’s motion to suppress the DNA evidence, the magistrate judge noted that Gipson was not challenging the reliability of the STR DNA profiling methodology which was used to create the relevant DNA profiles. Rather, Gipson was challenging — as failing to meet the reliability criteria set forth in Daubert — the Profi-ler Plus and Cofiler multiplex kits, which employ the STR DNA methodology. Id. *695 at 20. In response, the government argued that, because the Profiler Plus and Cofiler kits are simply tools for conducting STR DNA profiling, Daubert does not apply to them. The government argued that the reliability of Profiler Plus and Cofiler kits goes to the weight of the challenged evidence, not its admissibility. Id. In the alternative, the government argued, even if the Profiler Plus and Cofiler kits must satisfy the Daubert reliability standard, they meet all the relevant criteria. For support, the government submitted a January 2002 article published in the Journal of Forensic Sciences, entitled “TWGDAM Validation of AmpF/STR PCR Amplification Kits for Forensic DNA Casework,” as well as an affidavit from Schoenbauer, the forensic scientist at the BCA Laboratory who performed the pertinent STR DNA profiling using the Profiler Plus and Cofi-ler multiplex kits. 6
In support of his motion to suppress Nadeau’s identification of him from the photographic line-up shown to her on September 25, 2001, Gipson maintained that the manner in which Nadeau was shown the two different line-ups, with his photograph appearing in both line-ups, was impermissibly suggestive. Given that Nadeau clearly did not recognize him in the first line-up, Gipson argued, she likely recognized him in the second line-up only because she had seen his picture in the first line-up just six days earlier. Moreover, Gipson argued, under the totality of the circumstances there was a very substantial likelihood of misidentifi-cation because, for example, Nadeau had not been particularly attentive at the Firstar Bank on June 7, 2001, she was not able to provide any more than a general description of the man she saw that day, and over three months had passed between her observations at the bank and her identification of Gipson from the second photographic line-up. See id. at 12-14. In response, the government argued that neither the line-ups themselves nor the manner in which they were shown to Nadeau was unnecessarily suggestive. The government further maintained that Nadeau was not likely to misidentify the man she saw at the Firstar Bank on June 7, 2001, because she had a good opportunity to observe the man at a close distance, she twice gave a detailed and accurate description of her observations, she stated to Swanson six days after the robbery that she thought she would recognize the man if she were to see him again, the photographic line-ups individually were not suggestive, and nothing was ever said or done to suggest to Nadeau that Gipson was a suspect. See id. at 14-15.
The magistrate judge recommended denying Gipson’s motion to suppress the DNA evidence. Id. at 21-24. The magistrate judge also recommended denying Gipson’s motion to suppress Nadeau’s identification of him from the photographic line-up. See id. at 15-16.
Gipson filed objections to the magistrate judge’s report. The district court, upon de novo review, adopted the magistrate judge’s report and recommendation. Accordingly, the district court, among other things, denied Gipson’s motion to suppress the DNA evidence and denied his motion to suppress Nadeau’s identification of him from the photographic line-up. United *696 States v. Gipson, No. 01-CR-342 (Apr. 1, 2002) (order).
Gipson’s trial commenced on July 29, 2002. After the government’s case-in-chief, and before the case was submitted to the jury, Gipson moved for judgment of acquittal. The district court denied his motion. On July 31, 2002, the jury returned a verdict finding Gipson guilty on both counts in the indictment. The district court sentenced Gipson to 78 months imprisonment, three years supervised release, restitution totaling $24,551, and special assessments totaling $200. This appeal followed.
Discussion
Motion to suppress DNA evidence
Gipson first argues that the district court abused its discretion in admitting into evidence Schoenbauer’s expert testimony regarding DNA results produced through the use of the Profiler Plus and Cofiler multiplex kits, using the STR DNA profiling methodology. Gipson’s argument focuses on the reliability prong of
Daubert. See Daubert,
“We review a district court’s admission of DNA evidence for an abuse of discretion.”
United States v. Johnson,
In applying the reliability requirement of
Daubert,
this court has drawn a distinction between, on the one hand, challenges to a scientific methodology, and, on the other hand, challenges to the
application of
that scientific methodology. In
United States v. Beasley,
In the present case, the magistrate judge recognized that Gipson’s challenge under Daubert to the reliability of the Profiler Plus and Cofiler kits, as opposed to the STR method of DNA profiling, was in essence a challenge to the application of the STR methodology. See Magistrate Judge’s Report at 22-23. Thus, the magistrate judge considered the reliability of the Profiler Plus and Cofiler kits for the limited purpose of determining whether the Profiler Plus and Cofiler kits were so unreliable as to materially alter the STR methodology itself. Id. at 23 (“[WJhile some circuits have determined that Dau-bert simply does not apply to processing kits and laboratory protocols, the Eighth Circuit has been unwilling to go that far. Because the Martinez procedure is binding upon this Court, it has performed the initial inquiry.”). Upon careful consideration of the evidence presented, including the pertinent January 2002 article published in the Journal of Forensic Sciences and Schoenbauer’s affidavit, the magistrate judge concluded that “the Profiler Plus and Cofiler kits satisfy Daubert.” Id. at 23-24.
Upon review, we agree with the magistrate judge’s conclusion that the Profiler Plus and Cofiler kits satisfy the Daubert reliability standard. Thus, the evidence before the magistrate judge certainly did not support the conclusion that the Profiler Plus and Cofiler kits were so unreliable that their use resulted in a material alteration of the STR method itself. 8 The magistrate judge’s disposition of Gipson’s motion to suppress the DNA evidence under Daubert, which was adopted by the district court, was not an abuse of discretion.
Motion to suppress pretrial and in-court identifications
Next Gipson argues that the presentation of the two photographic line
*698
ups to Nadeau was impermissibly suggestive, thereby tainting Nadeau’s subsequent identification of him at trial in violation of his constitutional right to due process. We review
de novo
the issue of whether a constitutional violation has occurred.
Johnson,
While there is, of course, a greater risk of improper suggestion when a witness is shown, a suspect in two separate line-ups as opposed to one, that is not to say that such pretrial identification procedures will always be impermissibly suggestive.
See, e.g., Johnson,
Even if we were to hold that the pretrial identification procedures used were impermissibly suggestive, there was not a substantial likelihood of irreparable misidentification under the totality of the circumstances. Regarding this second part of the analysis, we consider the following factors: (1) Nadeau’s opportunity to observe the man she saw leaving the Firstar Bank; (2) her degree of attention at that time; (3) the accuracy of her description of what she observed; (4) her degree of certainty at the time she identified Gipson’s photograph; and (5) the length of time between her observations at the Firstar Bank and her identification of Gipson from the second photographic lineup.
See Johnson,
*699 Nadeau had a good opportunity to observe the man standing in the driveway of the Firstar Bank because he was blocking her car, was only about ten feet away, and looked directly at her. Moreover, even though she did not know that a robbery had just occurred, her attention was drawn to him because he had dropped his hat and was apparently unsure as to whether or not he should retrieve it. Her description of the man was generally consistent with Gipson’s appearance. Moreover, Johnson testified that Nadeau appeared “very sure” of her identification of Gipson from the second photographic line-up. Motions Hearing transcript at 50 (Jan. 14, 2002). Finally, the lapse of approximately three months between Nadeau’s observation of the man at the Firstar Bank and her identification of Gipson from the photographic line-up was not an unusually long time to remember a person’s face. In sum, we hold upon de novo review that Gipson’s due process rights were not violated as a result of the pretrial and in-court identification procedures used in the present case. Sufficiency of the evidence
Finally, Gipson argues that the evidence was insufficient as a matter of law to support the jury’s conclusion that the bank robberies were accomplished through the use of intimidation. Gipson argues that the robber’s actions at both the Firstar Bank and the S & C Bank were significantly less threatening than conduct that this court has previously found to be sufficient to establish intimidation under 18 U.S.C. § 2113(a).
Upon review, “we examine the evidence in the light most favorable to the government, giving it the benefit of all reasonable inferences.”
United States v. Caldwell,
Bank robbery is defined to include the taking “by force and violence, or by intimidation ... from the person or presence of another ... any property or money or any other thing of value belonging to, or in the care, custody, control, management, or possession of, any bank, credit union, or any savings and loan association.” 18 U.S.C. § 2113(a). The intimidation element is satisfied if an ordinary person in the position of a victim teller or bank employee reasonably could have inferred a threat of bodily harm from the robber’s actions.
United States v. Yockel,
In the present case, in each of the two charged bank robberies, the perpetrator
*700
was wearing a black mask, ordered the bank employees to the ground, and came over the counter towards them before grabbing money. At the Firstar Bank, one of the victim tellers began to cry, and another feared that she would be kicked in the head when the robber saw her looking up and ordered her to put her head down. Viewed in the light most favorable to the government, the evidence reasonably supported the jury’s finding of intimidation.
See, e.g., Caldwell,
Conclusion
The judgment of the district court is affirmed.
Notes
. The Honorable James R. Rosenbaum, United States District Judge for the District of Minnesota.
. Eckl testified that approximately 850 people live in Harris, Minnesota, and the size of Harris’s downtown area is approximately four square blocks. Trial transcript at 51.
. At trial, Nadeau positively identified Gipson in person as the man she saw in the driveway of the Firstar Bank in Hugo on June 7, 2001. She testified that her in-coúrt identification was based upon her memory of the man’s eyes, face, and build. Trial transcript at 201.
. At trial, Schoenbauer testified that "the probability of randomly selecting an unrelated individual from the general population that would match those 12 areas of DNA is approximately one in 523 billion.” Id. at 176.
.The Honorable Susan Richard Nelson, United States Magistrate Judge for the District of Minnesota.
. In support of his motion to suppress based on Daubert, Gipson did not submit an affidavit by a scientific expert, but did submit the affidavit of an attorney. According to the defense, because of Gipson's indigency, funds were not readily available to pay for the services of a scientific expert prior to the timely filing of his pretrial motions. See Magistrate Judge’s Report at 21 n. 5.
. As this court has observed on numerous occasions, the Supreme Court in
Daubert
identified the following nonexclusive factors to be considered in assessing the reliability of scientific evidence: (1) whether the relevant theory or technique can be or has been tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) whether the technique has a known or knowable rate of error; and (4) whether the theory or technique is generally accepted in the relevant community.
See, e.g., Jaurequi v. Carter Mfg. Co.,
. However, we reiterate that: "[I]n every case, of course, the reliability of the proffered test results may be challenged by showing that a scientifically sound methodology has been undercut by sloppy handling of the sam-pies, failure to properly train those performing the testing, failure to follow the appropriate protocols, and the like.”
Beasley,