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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 20-10359
Non-Argument Calendar
________________________
D.C. Docket No. 9:19-cr-80013-KAM-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
RODRICK DOMONIQUE JONES,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(September 13, 2021)
Before WILSON, MARTIN, and ROSENBAUM, Circuit Judges.
PER CURIAM:
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In March 2019, a grand jury charged Rodrick Jones with four counts of bank
robbery, 18 U.S.C. § 2113(a); five counts of armed bank robbery, 18 U.S.C.
§ 2113(a) and (d); and five counts of brandishing a firearm in furtherance of a
crime of violence, § 924(c)(1)(A).
Before trial, Jones moved to suppress evidence found during the execution
of a search warrant on the basis that the affidavit submitted by law enforcement to
obtain the search warrant was based on false or misleading information, or omitted
material facts. Among that evidence are two cell phones, from which data imaging
revealed Google Earth images of Chase Bank locations. The search-warrant
affidavit, completed by FBI Agent Daniel Szczepanski, summarized information
relating to a series of fourteen Chase Bank robberies between 2015 and 2018.
Jones argued that it intentionally or recklessly omitted or misrepresented
information connecting him to the robberies through the use of a gold car, the use
of a white car, possession of baseball caps worn by the suspect, and physical
similarities with the suspect. After conducting a hearing, the district court denied
Jones’s motion. It found that Jones failed to make the requisite showing of
misrepresentations or omissions. The court admitted the evidence at trial.
As the case moved to trial, the government filed a motion in limine to
introduce evidence of four uncharged bank robberies under Federal Rule of
Evidence 404(b). It argued that in all the robberies—charged and uncharged—the
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suspect approached the teller, presented demand notes that indicated that he had a
gun and demanded money, wore baseball caps and casual clothing, acted like a
normal customer, carried an envelope or folder that he put the money in, and
investigated the Chase Bank locations on Google Earth. Because of the
similarities, the government argued that the evidence was admissible under Rule
404(b) as it was relevant to Jones’s intent, preparation, plan, knowledge, and
identity. The district court granted the government’s Rule 404(b) motion for the
limited purpose of identity.
The government also sought to admit digital information from one of the cell
phones obtained from Jones’s home through the testimony of the government’s
expert witness, FBI Examiner Brian O’Neil. Over objection, the district court
admitted into evidence Google Earth images of Chase Bank locations. Jones
objected to the admission the Google Earth information on the ground that the
government had not timely disclosed the information. The district court sustained
the objection in part.
O’Neil continued with his testimony and the district court admitted the data
into evidence. Jones objected to the evidence on further grounds that the
extrapolations and interpretations of the data were never provided to him. The
district court ordered a four-day recess for the purpose of providing Jones with an
opportunity to investigate the matter. During recess, Jones moved to exclude
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O’Neil’s testimony. The district court found no bad faith on the part of the
government but acknowledged that there may have been neglect in not discovering
the data earlier. The district court denied Jones’s motion to exclude, and O’Neil’s
testimony continued.
O’Neil testified that through the use of a software program, he extracted the
information contained on two smartphones recovered from the property search and
generated a readable report on the information recovered. This procedure also
extracted images contained in the Google Earth application’s cache database,
where the application temporarily stored items on the phone.1 O’Neil identified
six images extracted from the Google Earth cache database and their creation
dates, which aligned with robbery dates. He also identified the phones’ web
searches that were not based on the Google Earth cache database, which were
admitted into evidence, and indicated that Chase banks located in the area of the
robberies had been searched for. The government also called Agent Szczepanski,
who testified that the property search turned up two phones from which they could
extract information. One phone had been on Jones’s person at the time of the
search, and the other had been in his room.
1
“Cache” means a “special memory subsystem in which frequently used data values are
duplicated for quick access.” United States v. Pruitt,
638 F.3d 763, 765 n.1 (11th Cir. 2011) (per
curiam).
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After hearing all the evidence, the jury returned guilty verdicts on four
counts of bank robbery, 18 U.S.C. § 2113(a) (Counts 1, 8, 11, and 14); and five
counts of armed bank robbery, 18 U.S.C. § 2113(a) and (d) (Counts 2, 4, 6, 9, and
12). Jones was found not guilty on five counts of brandishing a firearm in
furtherance of a crime of violence, § 924(c)(1)(A) (Counts 3, 5, 7, 10, and 13).
Jones moved for a judgment of acquittal on all counts, which the district court
denied.
Jones raises four issues on appeal. First, he argues that the district court
erred in denying his motion to suppress evidence from the search of his home and
cell phones because the search-warrant affidavits were insufficient. Second, he
argues that the district court abused its discretion in granting the government’s
motion to admit evidence of uncharged robberies under Federal Rule of Evidence
404(b). Third, he argues that the district court abused its discretion in allowing the
government’s expert and case agent to testify about exhibits extracted from the cell
phones because they were never properly disclosed. Fourth, he argues that the
district court erred in denying his motion for judgment of acquittal as to all counts.
I. Motion to Suppress
Jones argues that the district court erred in denying his motion to suppress
evidence from the government’s searches of his home and of the digital contents of
the recovered cell phones because the property search-warrant affidavit was
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insufficient. 2 We review the district court’s factual findings on a motion to
suppress for clear error and its application of law to those facts de novo. United
States v. Novaton,
271 F.3d 968, 986 (11th Cir. 2001). To be clearly erroneous, a
district court’s finding must leave us with a definite and firm conviction that a
mistake was made. United States v. Foster,
155 F.3d 1329, 1331 (11th Cir. 1998).
The facts are construed in the light most favorable to the party who prevailed
below. United States v. Hall,
47 F.3d 1091, 1094 (11th Cir. 1995).
There is a presumption of validity for the affidavit supporting a search
warrant. Franks v. Delaware,
438 U.S. 154, 171 (1978). Accordingly, the
individual challenging the search has the burden of proving that misrepresentations
or omissions rendered the search-warrant affidavit insufficient. See Novaton,
271
F.3d at 986–87. To be entitled to relief, the individual must show: “(1) that the
alleged misrepresentations or omissions were knowingly or recklessly made by
[the affiant], and (2) that the result of excluding the alleged misrepresentations and
including the alleged omissions would have been a lack of probable cause for
issuance of the warrants.” Id.; see also Franks,
438 U.S. at 156 (“In the event that
at [a suppression] hearing the allegation of perjury or reckless disregard is
established by the defendant by a preponderance of the evidence, and, with the
2
Jones also argues that the phone-search warrant was similarly insufficient as it repeated the
information in the property-search warrant. Our analysis relates to both.
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affidavit's false material set to one side, the affidavit's remaining content is
insufficient to establish probable cause, the search warrant must be voided and the
fruits of the search excluded to the same extent as if probable cause was lacking on
the face of the affidavit.”). Allegations of negligence or innocent mistake are
insufficient to satisfy the first prong. Franks, 438 F.3d at 171.
Construing the facts in the light most favorable to the government, we find
that the district court did not err in denying Jones’s suppression motion because he
has not shown that the alleged errors were intentional or done with reckless
disregard for the truth. We recognize that there were minor errors in the affidavit
and places where additional information would be helpful. Nonetheless, the facts
supplied in the search affidavit, and verified at the hearing before the district court,
establish the necessary connection between Jones and the gold car, white car,
baseball caps worn by the suspect, and physical characteristics of the suspect. The
affidavit explained that the gold car, registered to Jones at the time of one of the
robberies, was seen on surveillance cameras near the Chase Bank, and that
witnesses told law enforcement that they had seen the suspect walk in the direction
of the car. It drew similar connections between Jones and the white car. The
search-warrant affidavit also explained that Facebook posts revealed that Jones
owned hats similar to the ones worn by the suspect during the robberies. Finally,
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the affidavit included photographs of Jones consistent with witnesses’ physical
description of the suspect.
The court properly determined that any misrepresentations or omissions
were done by negligence or mistake. And the district court correctly noted that,
even if there were omissions or misrepresentations, remedying them would not
eliminate probable cause. The totality of the circumstances supported the district
court’s finding that Jones did not meet his burden as his asserted errors were either
due to negligence or a mistake, and did not eliminate the fair probability of
criminal activity that was necessary to establish probable cause.
II. Admission of Evidence of Uncharged Robberies
Jones argues that the district court erred in granting the government’s Rule
404(b) motion to admit evidence of uncharged robberies. “We will not disturb the
trial judge’s decision to admit or exclude Fed. R. Evid. 404(b) ‘other crimes’
evidence absent a clear showing of abuse of discretion.” United States v. Delgado,
56 F.3d 1357, 1363 (11th Cir. 1995). Rule 404(b) provides: “Evidence of any
other crime, wrong, or act is not admissible to prove the character of a person in
order to show” action in conformity therewith. Fed. R. Evid. 404(b). It may,
however, “be admissible for another purposes, such as . . . identity.”
Id. The
district court abuses its discretion, under Rule 404(b), when it admits evidence of a
previous bad act that does not satisfy the following three criteria: (1) the evidence
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must be relevant to an issue other than the defendant’s character; (2) the evidence
must be accompanied by sufficient proof that a jury could find that the defendant
committed the extrinsic act; and (3) the probative value of the evidence must not
be substantially outweighed by its undue prejudice, and the evidence must meet the
other requirements of Rule 403. United States v. Whatley,
719 F.3d 1206, 1217
(11th Cir. 2013).
When Rule 404(b) evidence is offered to establish identity, this standard is
“particularly stringent.” United States v. Lail,
846 F.2d 1299, 1301 (11th Cir.
1988). “[T]he likeness of the offenses is the crucial consideration. The physical
similarity must be such that it marks the offenses as the handiwork of the accused,”
demonstrating a modus operandi. Whatley, 719 F.3d at 1217. The crimes need not
be identical in every detail, but they must possess a commonality that makes it very
likely that the unknown perpetrator of the charged crime and the known perpetrator
of the uncharged crime are the same. United States v. Myers,
550 F.2d 1036, 1045
(5th Cir. 1977).3 As to the third prong, the central factor is whether the evidence is
essential to obtain a conviction or the government can do without such evidence.
See United States v. Pollock,
926 F.2d 1044, 1049 (11th Cir. 1991). An evaluation
of the evidence’s probative value must also consider the similarity between the
3
Bonner v. City of Prichard,
661 F.2d 1206, 1207 (11th Cir. 1981) (en banc) (holding that all decisions of
the “old Fifth” Circuit handed down prior to the close of business on September 30, 1981, are binding
precedent in the Eleventh Circuit).
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extrinsic and charged offenses and the time between the offenses. United States v.
Hernandez,
896 F.2d 513, 521 (11th Cir. 1990).
Under Rule 403, the court may exclude relevant evidence if its probative
value is substantially outweighed by a danger of one or more of the following:
unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting
time, or needlessly presenting cumulative evidence. Fed. R. Evid. 403. In the
context of Rule 404, because Rule 403 permits exclusion of otherwise probative
evidence, the district court must use it sparingly and strike the balance in favor of
admissibility. United States v. Fortenberry,
971 F.2d 717, 721 (11th Cir. 1992).
The district court did not abuse its discretion in granting the government’s
motion. As an initial matter, we recognize that two of the uncharged robberies
were not presented at trial. Thus any error would be harmless. See
id.
We then look to the other two uncharged robberies. First, Jones does not
contest that evidence of the uncharged robberies was not related to his character.
Second, we agree with the district court that the government showed a consistent
pattern between the charged and uncharged robberies. See Whatley, 719 F.3d at
1217. Specifically, each involved: (1) Chase banks, (2) a suspect wearing a
baseball cap; (3) a suspect acting like a regular customer, (4) a demand note that
referenced a gun, and (5) a suspect using an envelope or folder. Moreover, the
banks were implicated in the data extracted from Jones’s phone. And the
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uncharged robberies occurred in the same 18-month period of the charged
robberies. To the third prong, we find that the government presented sufficient
evidence that the jury could reasonably find by a preponderance of the evidence
that Jones committed the uncharged robberies. See id. Due to their similarity,
their probative value was not outweighed by the danger of any concern under
Rule 403. See Fortenberry,
971 F.2d at 721.
III. Admission of Google Earth Exhibits
Jones argues that the district court erred in allowing O’Neil and Agent
Szczepanski to testify about digital forensic evidence extracted from the Google
Earth applications on Jones’s cell phones. Specifically, he argues that the district
court erred in allowing O’Neil to testify about the Google Earth extracted data
information because the government did not timely disclose the information and
did not update O’Neil’s expert disclosure to give notice. He also argues that the
district court’s subsequent admission of Agent Szczepanski’s testimony was in
error because of those underlying discovery violations.
We review the district court’s decisions regarding the discovery and the
admissibility and reliability of expert testimony for an abuse of discretion. See
United States v. Holt,
777 F.3d 1234, 1264 (11th Cir. 2015) (regarding expert
testimony); United States v. Campa,
529 F.3d 980, 992 (11th Cir. 2008) (regarding
discovery). An abuse of discretion can occur where the district court applies the
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wrong law, follows the wrong procedure, bases its decision on clearly erroneous
facts, or commits a clear error in judgment. United States v. Willner,
795 F.3d
1297, 1316 (11th Cir. 2015).
Federal Rule of Criminal Procedure 16 requires that the government permit
the defendant, upon request, to inspect any papers, documents, or tangible objects
that are in the government’s possession and (1) are material to preparing the
defense, (2) are intended to be used by the government in its case in chief, or
(3) were obtained from the defendant. Fed. R. Crim. P. 16(a)(1)(c). For expert
witnesses, Rule 16 requires that, at the defendant’s request, the government must
provide “a written summary of any testimony that the government intends to
use . . . during its case-in-chief at trial.” Fed. R. Crim. P. 16(a)(1)(G).
Additionally, the government has a continuing duty to disclose newly discovered
evidence. See Fed. R. Crim. P. 16(c).
When a discovery violation occurs under Rule 16, there is no automatic
consequence; relief for the violation lies within the discretion of the trial court.
United States v. Mosquera,
886 F.3d 1032, 1045 (11th Cir. 2018). If a violation
occurs, the district court should impose the least severe sanction necessary to
ensure prompt and complete compliance with its discovery orders. United States v.
Turner,
871 F.2d 1574, 1580 (11th Cir. 1989). In determining a sanction, the
district court should consider the reasons for the delay in complying with the
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discovery order, whether there was any bad faith by the prosecution, prejudice to
the defendant, and the availability of a means to cure the prejudice.
Id. To support
reversal, the defendant must show prejudice to his substantial rights. Mosquera,
886 F.3d at 1045. We have said that substantial prejudice exists when a defendant
is unduly surprised and lacks an adequate opportunity to prepare a defense, or if
the mistake substantially influences the jury. Id.
The district court did not abuse its discretion in permitting O’Neil and Agent
Szczepanski to testify about the extractions and interpretations from the Google
Earth databases. The district court recognized that there was a discovery issue: the
delay in finding the information caused some prejudice to Jones. And the court
acted well within its discretion to determine that a recess was an appropriate
remedy; it allowed time for the government to comply and for Jones to review the
data. The court had discretion to remedy the violation as it saw fit. See id.
Moreover, because the court allowed Jones additional time to review the Google
Earth Data, Jones was not prejudiced. Jones was therefore not unduly surprised,
nor did he lack an adequate opportunity to prepare a defense. See id. Therefore
allowing O’Neil and Agent Szczepanski to testify, and admitting the data into
evidence was not reversible error.
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IV. Motion for Judgment of Acquittal
Jones argues that the district court erred in denying his motion for judgment
of acquittal. Specifically, he argues that all the evidence presented by the
government was purely circumstantial. He also argues that, with respect to Count
13, brandishing a firearm in furtherance of a crime of violence, 18 U.S.C.
§ 924(c)(1)(A), there was no evidence concerning the use of a firearm by the
suspect during the robbery.
We review the sufficiency of the evidence to support a conviction de novo,
viewing the evidence in the light most favorable to the government and drawing all
reasonable inferences and credibility choices in favor of the jury’s verdict. United
States v. Rodriguez,
218 F.3d 1243, 1244 (11th Cir. 2000) (per curiam). It is not
necessary that the evidence exclude every reasonable hypothesis of innocence,
provided a reasonable trier of fact could find that the evidence establishes guilt
beyond a reasonable doubt. United States v. Young,
906 F.2d 615, 618 (11th Cir.
1990). In determining the sufficiency of the prosecution’s case, we make no
distinction between circumstantial and direct evidence. United States v. Tate,
586
F.3d 936, 945 (11th Cir. 2009).
The district court did not err in denying Jones’s motion for judgement of
acquittal. We are not persuaded by Jones’s argument that a jury could not find him
guilty beyond a reasonable doubt based on purely circumstantial evidence, as we
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do not distinguish between direct and circumstantial evidence when determining
sufficiency of the evidence. See
id. In any event, the jury heard numerous
witnesses testify about the robberies themselves, how Jones had cars that matched
those seen at the robberies, that his phones showed that he had searched the areas
around the banks, that his fingerprints were on two of the demand notes, and how
those banks were federally insured. As such, the jury could reasonably find that
Jones committed the robberies beyond a reasonable doubt. See Young,
906 F.2d at
618. To the extent that Jones challenges Count 13, the jury already acquitted him,
and we need not address that argument. Accordingly, we affirm.
AFFIRMED.
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