United States v. Dravion Sanchez Ware ( 2023 )

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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-10539
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DRAVION SANCHEZ WARE,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:17-cr-00447-TCB-JSA-2
____________________
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2 Opinion of the Court 21-10539
Before NEWSOM, LUCK, and TJOFLAT, Circuit Judges.
TJOFLAT, Circuit Judge:
A jury convicted Dravion Sanchez Ware of thirteen counts
of Hobbs Act robbery and associated firearm offenses for his in-
volvement in robbing nine establishments in the greater Atlanta
area from October 7, 2017 to November 10, 2017: three spas, four
massage parlors, a nail salon, and a restaurant. He was sentenced
to life in prison. On appeal, Ware presents three challenges to his
conviction and one to his sentence: that the District Court erred
(1) by not holding a formal Daubert hearing before admitting ex-
pert fingerprint evidence; (2) by admitting lay identification testi-
mony by two FBI case agents who met with Ware upon his ar-
rest; (3) by instructing the jury on flight and concealment; and (4)
by applying the bodily restraint sentencing enhancement to three
of the nine robberies. After carefully reviewing the record and
with the benefit of oral argument, we find Ware’s contentions
unpersuasive and therefore affirm both his convictions and sen-
tence.
I.
Although Ware’s appeal focuses on three discrete issues at
his trial—and one at his sentencing hearing—we must begin by
placing these challenges in context. Before discussing Ware’s le-
gal arguments, this opinion (1) illustrates the events of October 7,
2017 through November 10, 2017 as presented to the jury; (2) ad-
dresses the relevant pre-trial proceedings; and (3) summarizes the
relevant evidence presented at trial.
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A.
1.
At around 1:12 am on October 7, 2017, three men entered
Spring Spa in Atlanta. When one of the spa’s employees saw that
one of the men—a young, black man—had a pistol, she ran out a
side door, flagged down a taxi, and used the driver’s phone to dial
911. While on the phone, the employee saw the man with the
pistol and his two compatriots exit the spa and depart the area in a
dark red vehicle. The men had stolen that employee’s cell phone.
2.
A little after 10:00 pm, four evenings later—that is, October
10—two black men visited Cedar Massage in Atlanta. One wore a
red jacket and hat and the other wore a sweatshirt with the hood
up. The pair looked around the store lobby, then inquired about
the price of a massage. The hooded man also took a mint or can-
dy out of a heart-shaped dish on the welcome counter, put the
mint in his mouth, removed the wrapper from his mouth, and re-
placed that wrapper into the bowl. The behatted robber quickly
revealed a handgun, holding it in his left hand. The left-handed
robber shoved his gun in two of the employees’ faces, demanding
all the money, and forcing them into a corner behind the massage
parlor’s welcome counter. This allowed the left-handed robber to
open the cash drawer before leading the employees out from be-
hind the counter and to the back of the establishment at gun-
point. Immediately prior to leaving, both robbers rummaged be-
hind the counter one more time. In less than five minutes, the
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two had left Cedar Massage with wallets and cell phones from
some employees as well as around $100 in cash.
3.
Late Friday night—around 11:15 pm on October 13—three
days after the Cedar Massage robbery, a dark red sedan pulled in-
to the parking lot of Qi Clay Sauna in Doraville. Eventually, two
young black men, one wearing a beanie and the other wearing a
sweatshirt with a hood, exited the vehicle and entered the sauna.
Inside, the sauna’s owner and the acting manager respec-
tively stood and sat behind the welcome counter. The two
young, black men, as potential customers, asked the acting man-
ager for a massage therapist. The acting manager responded in
the negative, informing the guests that Qi Clay does not offer
massages. About twenty seconds after entering the lobby, the
duo revealed pistols, the robber in the beanie holding his in his
left hand, and the robber in the hood holding his in his right hand.
The right-handed robber forced his way behind the welcome
counter, stuck his gun in the acting manager’s face, and threat-
ened to kill him. The acting manager put his hands up and said
there was no money, at which point the right-handed robber be-
gan pistol whipping him in the head multiple times. At some
point during this assault, the magazine fell out of the pistol and
was later recovered by police. While the acting manager cowered
on the ground, backed into a corner behind the welcome counter,
the right-handed robber continued to point his firearm at the act-
ing manager’s head multiple times. The right-handed robber also
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emptied the cash drawer. The left-handed robber grabbed the
owner’s purse off a chair; she tried to stop him, but the robber
pushed and kicked her to regain control over the bag.
Roughly two minutes after they entered, the two robbers
left the store, with the owner following behind them and the act-
ing manager behind her. Before getting back in the dark red car,
one of the robbers fired shots in the air and shouted, “don’t follow
me.” The two robbers stole a little over $100 from the cash
drawer as well as the owner’s purse, which contained $996, the
owner’s phones, personal ID’s, house key, and store keys to Qi
Clay and other stores.
4.
One week later, on the evening of October 20, two black
men burst into Lush Nails & Spa in Buckhead, guns drawn.
When the robbers arrived, a customer was in the process of
checking out at the front desk, and there was one other customer
in the store. One of the robbers put a gun to the side of the head
of the customer who was checking out and said, “Nobody
moves.” They walked around to the other side of the counter
and hit an employee over the head to steal what was in the cash
drawer; they also robbed the staff and kicked a woman in the face.
One of the robbers also hit the customer who was checking out in
the back of the head with his gun, causing her to smash her face
on the tile floor. As they were robbing the business, one of the
robbers apparently thought this customer—who was by this time
on the ground—had called someone, because he asked if she was
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on the phone, kicked her, and threatened to kill her. The robbers
left with the customer’s purse (containing jewelry, cash, makeup,
and car keys) as well as what they took from the cash drawer and
the employees.
5.
On October 24—four days after the Lush Nails & Spa rob-
bery—two men exited a karaoke bar in Doraville and drove away
in a dark red sedan in the direction of the Kochi Maru restaurant,
which is one-half mile away. Within half an hour, around 11:30
pm, two black men dressed the same as those that left the karaoke
bar entered Kochi Maru. Relevantly, one wore a beanie, and the
other wore a sweatshirt with the hood up.
The man wearing the beanie picked up a menu and held up
a “2” with his fingers to a waitress. To the right of the front coun-
ter a group of seven women ate together; they would later be
joined for a toast by the waitress who welcomed the two men.
The hooded man then walked down a walkway to the re-
stroom—returning after only a few seconds—while the man
wearing the beanie picked up the owner’s bag from a table situat-
ed along the same walkway. The robber with the beanie then
asked the owner where “the massage girls” were. Needless to
say, this restaurant did not offer massages.
The two men followed the owner back to the front desk, at
which point the twosome revealed weapons, the hooded robber
holding his gun in his right hand and the robber with the beanie
holding his in his left. The right-handed robber jammed his gun
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21-10539 Opinion of the Court 7
in the owner’s face. The robbers then split up. The hooded rob-
ber threatened the table of female customers, shot one of them in
the leg while she was sitting, and stole her bag. He also shot an-
other woman at the table twice: once through the leg and once
on the left side of her calf.
Meanwhile, the left-handed robber grabbed the owner and
forced her behind the front counter at gunpoint. He grabbed the
cash drawer, then walked around the counter, continuing to point
his weapon at the owner, who faced the corner crouched down
and covering her face. The hooded robber came back from the
table of former merrymakers, stopped for a detour while his part-
ner stood on the outside of the counter close to the door, and
shot the cowering owner in the back at close range before turning
and leaving with the left-handed robber. By the time they left, the
robbers had been in the restaurant for less than five minutes, and
the robbery itself lasted less than one minute.
6.
Ten days later, at around 6:00 pm on November 3, two
young, black men—again, one wearing a beanie and another in a
hooded sweatshirt—walked into Royal Massage in Norcross. The
two robbers entered the business and asked for a massage, at
which point an employee welcomed them and told them to fol-
low her. Once again, the hooded man appeared to pick up a mint
or candy from a dish on the welcome counter.
The pair then pulled out guns and demanded money;
again, the hooded robber held his gun in the right hand and the
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robber wearing the beanie held his gun in the left hand. The left-
handed robber immediately grabbed the welcoming employee
around the neck and brought her around the front counter and
then to the back of the store. When the left-handed robber re-
leased the employee for a moment, she escaped through a back
door. Meanwhile, the right-handed robber forced the owner to
the ground, and then to the back of the store. After about two
minutes, the robbers left with about $2,000 in cash; a cellphone,
driver’s license, and wallet from the welcoming employee; and a
purse from the owner of the business. After leaving the store, the
robbers drove away in a dark red sedan with a temporary license
plate.
7.
Around 8:00 pm on November 8, five days after the Royal
Massage robbery, the front desk manager, two employees, and a
customer were in Empress Massage II in Duluth. A dark red car
pulled into the parking lot before two black men exited the vehi-
cle and entered the lobby, both sporting hooded sweatshirts with
the hoods up. The manager, who was standing, asked if these
new customers wanted massages, and called other employees
over. One robber sat down near the customer who was sitting in
the waiting area. The manager then left the store. At this point,
the two hooded newcomers drew firearms, one man holding his
gun in his left hand, the other holding his in his right hand. The
employees scattered. The right-handed robber pursued one
around a divider, then pointed his weapon at other people down a
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hallway leading to the back of the store. Meanwhile, the left-
handed robber shoved his gun in the customer’s face, took her
bag, and rummaged behind the front counter. After a little over
one minute, the robbers had left with around $600 or $700 from
the store itself.
8.
Later that evening, at 8:40 pm, two black men, one wear-
ing a beanie and a hooded sweatshirt, the other wearing a hood
over his head, entered BD Spa in Stone Mountain. The hooded
man took a candy or mint out of a candy dish. After a few sec-
onds, an employee of the spa came out of a room in the back of
the business to greet the two newcomers in the lobby. The
hooded man drew a handgun and held it with his right hand.
The robber with the beanie then dug around behind the
front counter while the hooded robber forced the employee back
down the same hall from which she entered the lobby at gun-
point. He pushed her to the floor and entered the room the em-
ployee had exited a minute or so earlier, which contained a cus-
tomer. While he searched the room, the employee escaped out a
back door. The two robbers left the spa after less than two
minutes, and a red car drove out of the parking lot seconds after
they vacated the building.
9.
On November 10—two days later—around 8:50 pm, three
tall, thin, young, black men entered New You Massage in Ro-
swell. When they arrived, the owner of the business was per-
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forming a pedicure while the manager and three customers were
in or near the lobby. The manager walked over to the front
counter and the three men asked for a massage, at which point
the men moved to the waiting area. All three men pulled out
guns, with two hooded robbers holding the weapons in their right
hands and a beanie-clad robber holding his in his left hand.
One of the robbers pressed his gun to the owner’s temple
and demanded money. The left-handed robber rummaged be-
hind the front counter, pointing his weapon repeatedly at the
manager; after which the robber forced the manager out from
behind the counter and along the ground at gunpoint. In the
meantime, the right-handed robbers had gone towards the back
of the establishment. While in the back, one of the robbers forced
an employee to the ground at gun point. The robbers attempted
to take some bags from the back of the store and smashed the
butt of a gun on a woman’s head to do so. The robbers soon left
with $1,100, an overcoat, a cell phone, and a wallet. The owner
was able to track her stolen cell phone to a median on Georgia
400, where the police ultimately recovered the phone.
B.
FBI agents arrested Tabyron Smith on November 21, 2017,
and Dravion Ware on November 22, both pursuant to a warrant.
When the agents arrested Smith, they found clothing consistent
with that worn by the left-handed robber in the previously de-
scribed robberies, and they believed Smith was the left-handed
robber. When agents arrested Ware, he was hiding under a bed
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in the upstairs bedroom of an apartment. A cellphone was also
found under this bed, and a pistol was concealed under the mat-
tress. Agents found clothing consistent with that worn by the
right-handed robber, and they believed Ware was the right-
handed robber.
A grand jury in the United States District Court for the
Northern District of Georgia indicted 1 Ware and Smith on thir-
teen counts related to the armed robberies discussed above.
Count One alleged that Ware conspired with co-defendant
Tabyron Rashad Smith 2 and at least one other unknown person
to affect interstate commerce by means of robbery in violation of
the Hobbs Act, 18 U.S.C. § 1951(a), by robbing nine businesses in
the Atlanta area between October 7, 2017 and November 10,
2017.
Counts Two (Cedar Massage), Four (Qi Clay Sauna), Six
(Kochi Maru), Eight (Empress Massage II), and Ten (New You
Massage) alleged that Ware aided and abetted Smith—and vice
versa—to affect interstate commerce by means of robbery in vio-
1 The counts that follow are taken from the operative indictment at trial—
the Third Superseding Indictment, which was filed on July 16, 2019.
2 Smith pleaded guilty pursuant to an agreement in open court on July 23,
2019—less than a week before Ware’s trial—to the conspiracy count as well
as four of the firearms counts.
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lation of the Hobbs Act, 18 U.S.C. § 1951(a). 3 See id. § 2 (holding
those who aid and abet the commission of an offense liable as
principals).
Counts Three (Cedar Massage), Nine (Empress Massage
II), and Eleven (New You Massage) alleged that Ware and Smith 4
brandished a firearm during the crimes of violence alleged respec-
tively in Counts Two, Eight, and Ten in violation of 18 U.S.C.
§§ 924(c)(1)(A) & (c)(1)(A)(ii). See id. § 2.
Counts Five (Qi Clay Sauna) and Seven (Kochi Maru) al-
leged that Ware and Smith discharged a firearm during the crimes
of violence alleged respectively in Counts Four and Six in viola-
tion of 18 U.S.C. §§ 924(c)(1)(A) & (c)(1)(A)(iii). See id. § 2. 5
With the advice of counsel, Ware pleaded not guilty to all
thirteen counts with which he was charged.
Prior to trial, the District Court heard arguments and mo-
tions on a number of evidentiary issues. For one, Ware moved to
adopt Smith’s motion in limine to preclude fingerprint evidence.
Smith’s motion relied on the 2009 United States National Re-
3 Count Eight alleged that a third person engaged in the Empress Massage II
robbery, and Count Ten alleged that two additional individuals engaged in
the New You Massage robbery.
4 And the additional individuals involved in the Empress Massage II and
New You Massage robberies.
5 Ware was also charged, but ultimately not tried, on two firearm possession
charges.
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source Counsel (“NRC”) report and subsequent 2016 President’s
Counsel of Advisors on Science and Technology (“PCAST”) re-
port, which supposedly revealed a dearth of “proper scientific
studies of fingerprint comparison evidence” and claimed that
“there is no scientific basis for concluding a fingerprint was left by
a specific person,” positing that “because fingerprint analysis in-
volves individual human judgement, the resulting [fingerprint
comparison] conclusion can be influenced by cognitive bias.”
Def. Smith’s Mot. To Preclude Fingerprint Evid. The District
Court conditionally denied the motion at the pre-trial hearing un-
less Ware’s counsel could produce before trial a case from this
Court or a district court in this Circuit that favors excluding fin-
gerprint expert evidence under Daubert. 6
Ware also moved in limine to exclude “any purported
identification testimony based on a photograph or video.” The
magistrate judge recommended that this motion be denied be-
cause Special Agents Winn and Costa, who respectively spent one
hour and four hours with Ware after his arrest twelve days after
the last of the robberies—which was two years before trial—could
provide helpful lay identification testimony to the jury. The Dis-
trict Court denied Ware’s motion at the pre-trial hearing.
C.
Ware’s trial lasted four days and began on July 29, 2019.
On day two of the trial, the Government called a former Sandy
6 Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S. Ct. 2786 (1993).
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Springs crime scene investigator who pulled a latent fingerprint
off of the New You Massage owner’s cell phone. He testified
about the process of creating a fingerprint card, and defense coun-
sel vigorously cross-examined him about the usefulness of a latent
fingerprint in making an identification.
The same day, the Government called FBI Special Agent
Winn, who was the lead case agent for these robberies. Agent
Winn explained the data contained on a cellphone found with
Ware upon his arrest, including text messages apparently ad-
dressed to Ware and selfies of Ware.
At this point, Agent Winn identified Ware on direct exami-
nation:
A. . . . There was also pictures and videos on the
phone with some of them being what you would
call selfies or appeared to be pictures taken by the
person holding the phone, and those pictures depict-
ed, and videos, depicted Mr. Ware.
Q. And have you spent time with Mr. Ware since
his arrest?
A. Yes.
Q. So you have a basis to recognize him?
A. Yes.
Agent Winn discussed another photo on the phone:
Q. Is that a full-size version of that picture?
A. Yes.
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Q. And is that -- do you recognize that?
A. Yes. That’s Dravion Ware.
Agent Winn identified Ware from a third photo:
Q. And do you recognize that person?
A. Yes.
Q. Who is it?
A. Dravion [W]are.
Agent Winn also identified tattoos from pictures of Ware
as being consistent with tattoos visible on the right-handed robber
in the Qi Clay Sauna robbery surveillance video.
On day three of the trial, the Government called FBI Spe-
cial Agent Costa, who served as the co-case agent alongside Agent
Winn. The prosecutor and Agent Costa engaged in this ex-
change:
Q. Did you participate in the arrest of Mr. Ware
on November 22, 2017?
A. I did.
Q. How long after the last robbery at New You
Massage was that arrest?
A. Approximately 12 days.
Q. And approximately how long after the first
robbery back on October 7th at Spring Spa?
A. Approximately a month and a half.
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Q. Did you interview Mr. Ware on the day of his
arrest?
A. I did.
...
Q. How long approximately did you spend with
Mr. Ware during the interview process?
A. Approximately an hour and a half to two
hours.
Q. Did you spend some more time with him af-
ter that, before you turned him over to someone
else?
A. Yes. Both before and after.
Q. Approximately how much time total do you
think you spent with him?
A. A minimum of four hours.
Q. Possibly more?
A. Possibly more.
Q. Do you recognize the person you arrested
here in the courtroom?
A. I do.
Q. Can you please describe an item of clothing
he is wearing and point him out?
A. He is wearing a white dress shirt and a striped
tie sitting at the defense table over there.
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Q. That is the same Mr. Ware you arrested on
November 22nd of 2017?
A. It is.
Q. Has his appearance changed at all since then?
A. Yes. His hair is longer. And when I spent
time with him it wasn’t obscuring his face, it was
shorter. And looks like he has just gotten a little bit
older and maybe put on a little bit of weight.
Q. During the course of your investigation, did
you review the video footage carefully?
A. I did.
Q. Did you view it repeatedly?
A. Yes.
Q. Did you slow it down and pause it?
A. Yes.
Q. Are there a few spots in particular where you
believe you can identify Mr. Ware with some level
of certainty from the videos based on the time you
spent with him shortly after the robberies?
A. Yes.
At this point, defense counsel objected under Federal Rules
of Evidence 701 and 702, renewing the pre-trial objections.7 The
7 Federal Rule of Evidence 701 states:
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District Court overruled the objections and the examination con-
tinued:
Q. Which video in particular?
A. The New You Foot Massage on November
10.
...
Q. Was there a spot in the BD Spa video where
you felt you could identify him?
A. There was.
...
Q. How about at Qi Clay Sauna? Was there a
spot in the video there where you thought you
could recognize him?
A. Yes, there was.
If a witness is not testifying as an expert, testimony in the
form of an opinion is limited to one that is:
(a) rationally based on the witness’s percep-
tion;
(b) helpful to clearly understanding the wit-
ness’s testimony or to determining a fact in is-
sue; and
(c) not based on scientific, technical, or other
specialized knowledge within the scope
of Rule 702.
Fed. R. Evid. 701.
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...
Q. Is there something else about that picture --
first, before I get to that, while you spent time with
Mr. Ware, did you see his tattoos?
A. I did.
Q. Did you have time to observe them over the
hours that you spent with him?
A. Yes, I did.
Q. Based on that do you feel you can recognize
those tattoos in this video?
A. Yes, I do.
Q. Where are they?
A. The one that stands out to me is on his left
wrist into his forearm.
Q. And for the jury’s benefit, does this picture
from Mr. Ware’s phone, that we have already admit-
ted, clearly show the arm tattoo that we are talking
about . . . ?
A. Yes, it does. It’s a flame on his left forearm.
Q. Was there a spot in the Royal Massage video
where you thought you could recognize Mr. Ware?
A. Yes, there was.
...
Q. How about in the Kochi Maru video?
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A. Yes. In that one as well.
After each question about the surveillance videos, Agent Costa
identified the specific point in the video in which he could recog-
nize Ware.
Later that day, the Government called a crime lab scientist
with the Georgia Bureau of Investigation Division of Forensic
Sciences. The Government tendered the scientist as an expert in
fingerprint examinations and comparisons. This expert outlined
the science behind fingerprints themselves, including their
uniqueness. According to the expert, as a person “handle[s] an
object or touch[es] a surface, the sweat and other residues on the
surface of the skin can be transferred to the surface of the object
[in the pattern of the person’s fingerprint], and then later devel-
oped and collected and preserved to be used for comparison
against other known fingerprint exemplars.”
The expert also explained the four-step process the lab fol-
lows in analyzing a fingerprint once it has been recovered: “Anal-
ysis, Comparison, Evaluation, and Verification,” or ACEV. First,
the examiner “examine[s] and observe[s] any friction ridge im-
pression or latent8 print from the evidence to determine if there is
enough detail of suitable quality that the impression can be com-
8 The expert explained that a latent print is a fingerprint or partial fingerprint
left behind on an object that would be collected by a crime scene examiner.
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21-10539 Opinion of the Court 21
pared to a known print.” 9 In other words, the first step is to de-
termine if there is enough of a print to even engage in a compari-
son. Second, the examiner places the latent and known print side
by side and “look[s] for either the similarity or dissimilarity in
those features in the latent and the known” prints. Then, the
“evaluation phase is . . . where the examiner makes a decision of
whether or not the latent prints and the known prints were made
by the same source or different sources.” The examiner can reach
one of three conclusions after this process: (1) identification,
meaning the examiner thinks the prints were made by the same
person; (2) exclusion, meaning the examiner thinks the prints
were made by different people; or (3) an inconclusive result,
meaning the examiner cannot determine whether the prints were
made by the same person or not. The verification process in-
volves another examiner completing the whole process a second
time.
The fingerprint expert testified that she was the verifying
examiner for the print retrieved from the New You Massage
owner’s cell phone found on the Georgia 400 median. She testi-
fied that the lab concluded the latent print found on the cell
phone led to an identification conclusion matched to Ware’s left
middle finger. Defense counsel specifically asked about the
PCAST report it sought to use to exclude the fingerprint testimo-
ny prior to trial. Ware’s attorney vigorously cross-examined the
9 The expert also explained that a known print is the comparison fingerprint
taken from a known individual in a controlled setting, like at a police station.
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expert, discussing the possibility of a latent fingerprint not being
usable due to smudging or a finger only lightly touching an ob-
ject, the subjectiveness of every step of the four-part fingerprint
analysis, and the bias that may creep into the verification process
after another examiner has already reached an identification con-
clusion. The expert and defense counsel discussed fingerprint
comparison as a forensic discipline, including the potential for
false positives and negatives. On cross, the defense also attacked
the expert’s claim that she did not know of the Georgia Bureau of
Investigation ever misidentifying someone with a fingerprint
comparison, and that she did not know the rate at which a verifier
disagrees with the original assessment.
At the end of this day of trial, the parties read two stipula-
tions to the jury. The first stated that Ware and Smith had known
each other since at least 2012. The second informed the jury that
investigators tested the gun found under the mattress with Ware
during his arrest and it did not match the ballistics testing for the
shooting at Kochi Maru. At the end of this day, the Government
rested and defense counsel moved for a judgment of acquittal.
On the last day of trial, before the presentation of Ware’s
two witnesses later that day—a private investigator and an officer
who responded to the BD Spa robbery—Ware objected to the in-
clusion of a jury instruction on flight and concealment. 10 In ex-
10 The jury instruction read:
Intentional flight or concealment by a person during or im-
mediately after a crime has been committed or after he is ac-
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21-10539 Opinion of the Court 23
plaining the objection, defense counsel specifically recognized
that “this is not the law from the 11th Circuit, but . . . there is
some law from other courts, including the Georgia Supreme
Court, saying instructions on flight are inappropriate because they
draw unnecessary attention to it.” The District Court overruled
the objection. The jury returned a guilty verdict on all counts the
next day.
The District Court sentenced Ware on February 9, 2021.
Relevant to this appeal, the Court found that a two-level sentenc-
ing enhancement for physically restraining victims applied to all
the robberies but the Spring Spa robbery. See U.S.S.G.
cused of a crime is not of course sufficient in itself to establish
the guilt of that person, but intentional flight or concealment
under those circumstances is a fact which, if proved, may be
considered by the jury in light of all of the other evidence in
the case in determining the guilt or innocence of that person.
Whether or not the defendant’s conduct constituted flight or
concealment is exclusively for you as the jury to determine.
And if you do so determine whether or not that flight or con-
cealment showed a consciousness of guilt on his part and the
significance to be attached to that evidence are also matters
exclusively for you as a jury to determine. I remind you that
in your consideration of any evidence of flight or conceal-
ment, if you should find that there was flight or concealment
you should also consider that there may be reasons for this
which are fully consistent with innocence. These may in-
clude fear of being apprehended, unwillingness to confront
the police, or reluctance to confront the witness. And may I
also suggest to you that a feeling of guilt does not necessarily
reflect actual guilt of a crime to which you may be consider-
ing.
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24 Opinion of the Court 21-10539
§ 2B3.1(b)(4)(B). Under the calculation of the presentence inves-
tigation report (the “PSR”), each of the robberies merited a guide-
line sentence of 235 to 293 months, but the Hobbs Act robbery
offense carried a statutory maximum of 240 months. Additional-
ly, the District Court added a mandatory 252 months for three
counts of brandishing a firearm and a mandatory 240 months for
two counts of discharging a firearm as it was required to do, thus
bringing the guideline range sentence to 727 to 785 months.
The District Court, after hearing argument, also applied an
upward departure pursuant to the commentary to U.S.S.G.
§ 2B3.1 for intending to murder the owner of Kochi Maru when
Ware shot her in the back.11 This upward departure brought the
guideline range to a mandatory 41 years for the firearm offenses,
plus a range of 370 months to life imprisonment for the robberies.
The District Court went on to sentence Ware to life in prison: 20
years concurrently on Counts 1, 2, 4, 6, 8, and 10; and life concur-
rently on Counts 3, 5, 7, 9, and 11. Ware objected to the applica-
tion of the two-level physical restraint adjustment.
In addition to the lay identification testimony and finger-
print evidence that tied Ware to these nine robberies, the Gov-
ernment introduced the following summarized evidence. The
prosecutor called eyewitnesses from almost every robbery—
though defense counsel revealed that many could not identify the
11 “If the defendant intended to murder the victim, an upward departure
may be warranted; see § 2A2.1 (Assault with Intent to Commit Murder; At-
tempted Murder).” U.S.S.G. § 2B3.1 cmt. n.5.
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21-10539 Opinion of the Court 25
robbers beyond their race. Investigators explained modus op-
erandi evidence applicable to most robberies that included the
robbers’ appearance, dress, hand dominance, and getaway vehi-
cle. The Government introduced search pictures of the car be-
lieved to be the getaway car. It had been painted white, con-
tained Korean currency and cigarette butts, and had a temporary
vehicle tag in the glovebox. The Government showed surveil-
lance footage from Qi Clay, Cedar Massage, Kochi Maru, Em-
press Massage, New You, BD Spa, and Royal Massage. Cell loca-
tion data placed Smith or Ware near Spring Spa, Lush Nails &
Spa, Royal Massage, Empress Massage, and New You Massage at
about the time of the robberies of those respective businesses.
The jury saw incriminating searches on the phone found with
Ware upon his arrest. These included (1) addresses of the robbed
businesses prior to the robberies; (2) searches for weapon sales co-
inciding with the right-handed robber losing his magazine at the
Qi Clay robbery; and (3) “Channel 2 News most wanted,” “Rob-
bery crew arrested of terrorizing at least nine restaurants, busi-
nesses,” “what kind of phones can be traced,” and “Dravion
Ware” after the FBI had released information to the press asking
for assistance in concluding the robbery investigations. A DNA
expert introduced DNA evidence with a confidence rate multiple
times higher than the FBI’s threshold for conclusively identifying
a DNA’s source. This evidence included matching Ware to the
mint wrapper left at Cedar Massage and matching Smith and
Ware to cigarette butts, a hat, and a water bottle in the car
thought to be the getaway car.
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26 Opinion of the Court 21-10539
II.
“We review for abuse of discretion the district court’s deci-
sions regarding the admissibility of expert testimony and the reli-
ability of an expert opinion.” United States v. Frazier, 387 F.3d
1244, 1258 (11th Cir. 2004) (en banc) (citations omitted). We also
review the denial of a Daubert hearing only for abuse of discretion.
United States v. Hansen, 262 F.3d 1217, 1233 (11th Cir. 2001) (per
curiam).
“[D]eference . . . is the hallmark of abuse-of-discretion re-
view.” Gen. Elec. Co. v. Joiner, 522 U.S. 136, 143, 118 S. Ct. 512, 517
(1997). Therefore, we must affirm an evidentiary decision of a
district court “unless the ruling is manifestly erroneous,” id. at
142, 118 S. Ct. at 517 (quoting Cong. & Empire Spring Co. v. Edgar,
99 U.S. 645, 658 (1878)), that is, unless the district court “has made
a clear error of judgment, or has applied the wrong legal stand-
ard.” Frazier, 387 F.3d at 1259 (citation omitted).
Federal Rule of Evidence 702 provides:
A witness who is qualified as an expert by
knowledge, skill, experience, training, or education
may testify in the form of an opinion or otherwise if:
(a) the expert’s scientific, tech-
nical, or other specialized knowledge
will help the trier of fact to understand
the evidence or to determine a fact in
issue;
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21-10539 Opinion of the Court 27
(b) the testimony is based on suf-
ficient facts or data;
(c) the testimony is the product
of reliable principles and methods; and
(d) the expert has reliably ap-
plied the principles and methods to the
facts of the case.
Fed. R. Evid. 702.
The district courts have a duty to ensure that the parties
follow Rule 702, and thus that the jury only hears testimony given
the imprimatur of being spoken by an expert, when the testimony
is deserving of such a distinction. See Daubert v. Merrell Dow
Pharms., Inc., 509 U.S. 579, 590–93, 113 S. Ct. 2786, 2795–97
(1993). In this Circuit, courts utilize a three-part test to screen po-
tential expert evidence under Rule 702:
Scientific expert testimony is admissible if “(1) the
expert is qualified to testify competently regarding
the matters he intends to address; (2) the methodol-
ogy by which the expert reaches his conclusions is
sufficiently reliable as determined by the sort of in-
quiry mandated in Daubert; and (3) the testimony as-
sists the trier of fact, through the application of sci-
entific, technical, or specialized expertise, to under-
stand the evidence or to determine a fact in issue.”
Hansen, 262 F.3d at 1234 (quoting City of Tuscaloosa v. Harcros
Chems., Inc., 158 F.3d 548, 562 (11th Cir. 1998)).
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28 Opinion of the Court 21-10539
The burden of establishing these three prongs—
qualification, reliability, and helpfulness—falls on the proponent
of the expert opinion, here, the prosecution. Frazier, 387 F.3d at
1260. While the government bears this burden, and though we
have described this three-part inquiry as “rigorous,” id., the Unit-
ed States Supreme Court unequivocally refers to the Daubert in-
quiry as “flexible.” Daubert, 509 U.S. at 594, 113 S. Ct. at 2797.
The flexibility of the Daubert analysis and the deferential
review of district court decisions in this realm derive from the
same general policy: allowing district courts, which are much
more intimately familiar with the individual facts and needs of a
particular case, to manage their dockets and counsels’ time to
provide the most efficient and just resolution of issues. As the
Supreme Court has explained, without this necessary leeway,
the trial judge would lack the discretionary authority
needed both to avoid unnecessary “reliability” pro-
ceedings in ordinary cases where the reliability of an
expert’s methods is properly taken for granted, and
to require appropriate proceedings in the less usual
or more complex cases where cause for questioning
the expert’s reliability arises.
Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152, 119 S. Ct. 1167,
1176 (1999). In reviewing these evidentiary issues under an abuse
of discretion standard, we will not micromanage trial courts from
the appellate bench.
Ware challenges neither the qualifications of the Govern-
ment’s fingerprint expert nor the helpfulness of the testimony; he
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21-10539 Opinion of the Court 29
only challenges the reliability of fingerprint analysis generally.
Within the reliability prong, district courts generally consider four
factors: “(1) whether the expert’s theory can be and has been test-
ed; (2) whether the theory has been subjected to peer review and
publication; (3) the known or potential rate of error of the particu-
lar scientific technique; and (4) whether the technique is generally
accepted in the scientific community.” Quiet Tech. DC-8, Inc. v.
Hurel-Dubois UK Ltd., 326 F.3d 1333, 1341 (11th Cir. 2003) (internal
citation omitted). When a district court, in fulfilling its gatekeep-
ing function, carefully considers these factors, it may hold a Daub-
ert hearing. But “Daubert hearings are not required.” Cook ex rel.
Estate of Tessier v. Sheriff of Monroe Cnty., 402 F.3d 1092, 1113 (11th
Cir. 2005) (quoting Hansen, 262 F.3d at 1234).
On the one hand, a Daubert hearing “may be helpful in
‘complicated cases involving multiple expert witnesses.’” Hansen,
262 F.3d at 1234 (quoting City of Tuscaloosa, 158 F.3d at 564–65
n.21). And a “district court should conduct a Daubert inquiry
when the opposing party’s motion for a hearing is supported by
conflicting medical literature and expert testimony.” Id. (internal
quotation marks and citation omitted). On the other hand, “some
expert testimony will be so clearly admissible that a district court
need not conduct a Daubert hearing in every case.” Frazier, 387
F.3d at 1264.
Ware does not just challenge the reliability of fingerprint
evidence; rather, he specifically asserts that the District Court
erred by not holding a Daubert hearing to answer the reliability
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30 Opinion of the Court 21-10539
question. However, such a hearing is not always required. See
Cook, 402 F.3d at 1113. We grant “the same kind of latitude” to
the district court “in deciding how to test an expert’s reliability” as
we grant to the district court’s decision “whether or not that ex-
pert’s relevant testimony is reliable.” Kumho Tire, 526 U.S. at 152,
119 S. Ct. at 1176 (emphasis in original).
The District Court here did not abuse its discretion in not
holding a formal Daubert hearing before admitting the Govern-
ment’s fingerprint expert. “Notwithstanding its critical gatekeep-
ing function” to prevent the jury from hearing expert testimony
that does not have proper indicia of reliability, “the trial court is
just that—a gatekeeper—and Rule 702 is a screening procedure,
not an opportunity to substitute the trial court’s judgment for that
of a jury.” United States v. Barton, 909 F.3d 1323, 1332 (11th Cir.
2018) (emphasis in original). The issue presented by Ware’s ob-
jection in this case makes it all the more reasonable for the Dis-
trict Court to have denied the motion to exclude the Govern-
ment’s fingerprint expert without a formal hearing. Ware only
challenges the reliability prong of Daubert. In other words, Ware
only suggests that fingerprint comparison is unreliable science as a
general matter, not that the Government’s particular fingerprint
expert was unqualified to testify about fingerprint comparison.
The Daubert gatekeeping function’s core use is to keep junk
science away from the jury. In fact, Daubert cases frequently ex-
press concern about trial judges substituting their judgment for
that of the jury. See, e.g., Barton, 909 F.3d at 1332; Quiet Tech., 326
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21-10539 Opinion of the Court 31
F.3d at 1341 (“[I]t is not the role of the district court to make ul-
timate conclusions as to the persuasiveness of the proffered evi-
dence.”); United States v. Esformes, 60 F.4th 621, 635 (11th Cir.
2023) (rejecting a “categorical rule that the district court must
never allow the jury to hear an expert’s testimony before ruling
on it”).
Fingerprint comparison has long been accepted as a field
worthy of expert opinions in this Circuit, as well as in almost eve-
ry one of our sister circuits. See United States v. Abreu, 406 F.3d
1304, 1307 (11th Cir. 2005) (per curiam); see also United States v.
Straker, 800 F.3d 570, 631 (D.C. Cir. 2015) (per curiam) (“The reli-
ability of [ACE-V] fingerprint methodology was ‘properly taken
for granted.’” (quoting Kumho Tire, 526 U.S. at 152, 119 S. Ct. at
1176)); United States v. Mahone, 453 F.3d 68, 71 (1st Cir. 2006) (find-
ing the ACE-V fingerprint method reliable and following other
circuits); United States v. Al-Farekh, 956 F.3d 99, 115 (2d Cir. 2020)
(assuming fingerprints reach the Daubert reliability threshold to
hold the district court did not abuse its discretion by limiting de-
fendant’s cross examination of the government’s fingerprint ex-
pert); United States v. Mitchell, 365 F.3d 215, 246 (3d Cir. 2004)
(finding “good grounds” for admitting the government’s finger-
print analysis expert evidence); United States v. Crisp, 324 F.3d 261,
269 (4th Cir. 2003) (affirming the district court’s admission of a
fingerprint expert); United States v. John, 597 F.3d 263, 274–75 (5th
Cir. 2010), abrogated on other grounds by Van Buren v. United States,
141 S. Ct. 1648 (2021) (holding the district court did not err by not
conducting a Daubert hearing on fingerprint reliability because
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32 Opinion of the Court 21-10539
“the reliability of the technique has been tested in the adversarial
system for over a century and has been routinely subject to peer
review”); United States v. Havvard, 260 F.3d 597, 601 (7th Cir. 2001)
(holding that a district court that recognized fingerprint analysis’s
“100 years of successful use in criminal trials” did not err by ad-
mitting fingerprint expert evidence); United States v. Collins, 340
F.3d 672, 682 (8th Cir. 2003) (“Fingerprint evidence and analysis is
generally accepted.”); United States v. Calderon-Segura, 512 F.3d
1104, 1110 (9th Cir. 2008) (stating that fingerprint identification “is
just the sort of routine case where evidentiary reliability was
properly taken for granted”); United States v. Baines, 573 F.3d 979,
992 (10th Cir. 2009) (holding the district court did not abuse its
discretion by admitting fingerprint analysis evidence as reliable).
True, the PCAST and NCAST reports may cast doubt on
the error rate of fingerprint analysis and comparison. But, as in
many other realms of trial procedure, admissibility is a lower bar
to clear than credibility. Much like the proper cure for incredible
but admissible testimony is vigorous cross-examination, the prop-
er cure for sufficiently reliable but allegedly “shaky” scientific evi-
dence is not exclusion, but “[v]igorous cross-examination, presen-
tation of contrary evidence, and careful instruction on the burden
of proof.” Daubert, 509 U.S. at 596, 113 S. Ct. at 2798. Defense
counsel put the Government’s expert through his paces during
cross-examination, and counsel specifically asked the expert about
the findings in the PCAST report. The jury was therefore ade-
quately cognizant of the potential limitations of fingerprint evi-
dence. The District Court certainly did not abuse its discretion by
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21-10539 Opinion of the Court 33
admitting evidence as oft used as fingerprint analysis. In fact,
Ware’s contrary authority even says that fingerprint evidence can
be reliable. Appellant Br. at 25. The science could not possibly
have been so unreliable as to be inadmissible.
Ware’s brief claims that the District Court completely ab-
dicated its gatekeeping role by admitting the fingerprint evidence.
This is untrue. While the District Court did not conduct a formal
Daubert hearing, it was not required to do so. The Court consid-
ered the reports and arguments presented and found that finger-
print evidence was reliable enough as a general matter to be pre-
sented to the jury. Many of the critiques of fingerprint evidence
found in the PCAST report go to the weight that ought to be given
fingerprint analysis, not to the legitimacy of the practice as a
whole. Appellant Br. at 25 (“The studies collectively demonstrate
that many examiners can, under some circumstances, produce cor-
rect answers at some level of accuracy.” (emphasis in original)).
Therefore, the evidence was properly admitted and properly in-
terrogated on cross-examination.
Ware’s brief also points to Hansen for the assertion that the
District Court should have held a Daubert hearing because Ware’s
objection to the fingerprint evidence was supported by “conflict-
ing medical literature and expert testimony.” Hansen, 262 F.3d at
1234 (quotation omitted). As an initial matter, Ware did not offer
a competing expert. More importantly, directly preceding this
quote from Hansen, the Court acknowledges that “Daubert hear-
ings are not required.” Id. Additionally, the Court held in Hansen
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34 Opinion of the Court 21-10539
that the District Court ultimately did not abuse its discretion in
not holding a formal Daubert hearing. Id. The District Court here
could have held a Daubert hearing to assess the relatively new re-
ports Ware presented. But considering the long history in this
Circuit and other circuits of admitting fingerprint experts without
a Daubert inquiry, and the considerable leeway we grant to district
courts on these matters, the District Court did not abuse its dis-
cretion by not holding a Daubert hearing here.
III.
“We review the admission of witness testimony, both lay
and expert, for abuse of discretion.” United States v. Crabtree, 878
F.3d 1274, 1287 (11th Cir. 2018) (citations omitted).
A quarter century ago, we joined many of our sister circuits
in finding that “lay opinion identification testimony may be help-
ful to the jury where . . . ‘there is some basis for concluding that
the witness is more likely to correctly identify the defendant from
[a] photograph [or video] than is the jury.’” United States v. Pierce,
136 F.3d 770, 774 (11th Cir. 1998) (citation omitted). Determining
the admissibility of lay opinion identification testimony involves
placing the proffered testimony on a continuum.
On one end of the continuum, we find the identification
testimony of the defendant’s sister, college roommate, or ex-
boyfriend—someone who has spent so much “substantial and sus-
tained contact” with the defendant and has such an intimate rela-
tionship with the defendant that there is no doubt the witness
brings a level of familiarity to the identification that a jury could
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21-10539 Opinion of the Court 35
never hope to attain. Id.; see also United States v. White, 639 F.3d
331, 336 (7th Cir. 2011) (allowing identification testimony using a
surveillance photograph by the defendant’s sister and ex-
girlfriend); United States v. Saniti, 604 F.2d 603, 605 (9th Cir. 1979)
(per curiam) (allowing identification testimony from the defend-
ant’s roommates). On the other end of the continuum, we find a
witness whose “knowledge of the defendant’s appearance [is]
based entirely on the witness’s ‘review of photographs of [the de-
fendant] and witnesses’ descriptions of him.’” Pierce, 136 F.3d at
774 (second alteration in original) (quoting United States v.
LaPierre, 998 F.2d 1460, 1465 (9th Cir. 1993)). The reason these
latter witnesses ought to be excluded is because their identifica-
tion is not based on “anything more than the evidence the jury
would have before it at trial.” Id.To place a given lay identification witness on this continu-
um, a district court looks to:
factors such as the witness’s familiarity with the de-
fendant’s appearance at the time the surveillance
photographs were taken or dressed in a manner sim-
ilar to the individual depicted in the photographs,
and whether the defendant had either disguised his
appearance at the time of the offense or altered his
appearance prior to trial.
Id. at 774–75. Because “we have not had the opportunity to artic-
ulate” where on this continuum admissible lay identification opin-
ion becomes inadmissible and unhelpful to the jury, we once
again look to our sister circuits for guidance to fill in the gaps left
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36 Opinion of the Court 21-10539
by the Pierce standard. United States v. Knowles, 889 F.3d 1251,
1256 (11th Cir. 2018).
The Second Circuit, in considering a defendant’s convic-
tions for, in part, Hobbs Act robbery, held that the district court
did not abuse its discretion in admitting lay identification testi-
mony from the defendant’s probation officer, who identified the
defendant from a surveillance video of the robbery. United States
v. Walker, 974 F.3d 193, 197, 204 (2d Cir. 2020). The probation of-
ficer had supervised the defendant for a year before the robbery
and “had spent many hours” with him. Id. at 205. In reaching its
conclusion, the court mentioned the fact that the robber wore a
hood in the video, the defendant—unlike the robber in the vid-
eo—wore glasses in the courtroom, the video was not clear, and
the robber in the video looked heavier than the defendant in the
courtroom. Id.
The Eighth Circuit, in a case involving a methampheta-
mine distribution ring, held the district court did not abuse its dis-
cretion in allowing a DEA agent to identify the defendants in a
surveillance video of a controlled buy. United States v. Sanchez,
789 F.3d 827, 831, 837 (8th Cir. 2015). In so holding, the court
reasoned that the testimony was helpful to the jury given the
“relatively low quality of the footage and the agent’s extensive
surveillance of” the defendant.12 Id.12 The surveillance took place over a period just shy of two years. Sanchez,
789 F.3d at 831, 833.
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21-10539 Opinion of the Court 37
The Ninth Circuit, in a bank robbery case, held the district
court did not abuse its discretion by admitting the identification
testimony of the defendant’s probation officer who had seen the
defendant “four times in a two-month period, for a total of more
than seventy minutes.” United States v. Beck, 418 F.3d 1008, 1015
(9th Cir. 2005).
The Tenth Circuit, in another bank robbery case, held the
district court did not abuse its discretion by admitting the identifi-
cation testimony of the defendant’s probation officer who had
met with the defendant “for between five and ten minutes on
multiple occasions.” United States v. Contreras, 536 F.3d 1167, 1171
(10th Cir. 2008).
The Seventh Circuit held that the district court did not
abuse its discretion in admitting the lay identification testimony of
a witness who met the defendant (and only knew him by a nick-
name) once at a Christmas party a year before identifying him as a
bank robber from a surveillance picture. United States v. Jackson,
688 F.2d 1121, 1122–23 (7th Cir. 1982). The court reasoned that
her testimony was sufficiently useful “even without evidence of a
change in the defendant’s appearance.” Id. at 1125.
The Sixth Circuit recently considered the lay identification
of a bank robber by a victim teller. United States v. Howell, 17
F.4th 673, 678 (6th Cir. 2021). That court held that the district
court abused its discretion in admitting the testimony because it
was neither rationally based on the teller’s perceptions nor helpful
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38 Opinion of the Court 21-10539
to the jury. 13 Id. at 684–85. The teller could not see the robber
during the robbery, but testified that his voice felt vaguely famil-
iar. Id. at 684. Upon later watching news of the robbery and see-
ing that the defendant had been arrested for the crime, her suspi-
cions were confirmed, and she pieced together who she believed
the robber was. Id. at 683–85.
Agents Winn and Costa had significantly more contact
with Ware than the arms-length experience from the news at is-
sue in Howell. Both the one hour and four hours of contact place
Agents Winn and Costa comfortably in an at least as helpful a
place as the witnesses in Jackson, Contreras, and Beck.
Here, therefore, the District Court did not abuse its discre-
tion in allowing Agents Winn and Costa to testify about Ware’s
identity. 14 Both agents had first-hand knowledge of Ware’s ap-
13 Ultimately, the Sixth Circuit found the error harmless. Howell, 17 F.4th at
686.
14 Ware’s attorney also objected to the following exchange between the
prosecutor and a Doraville Police detective as an identification determina-
tion that ought to be left to the jury:
Q. What are we watching there, Detective?
A. Two males exiting a vehicle and going into a karaoke
bar restaurant.
Q. Is that the same vehicle that we were watching?
A. Yes.
Q. And have you actually been there to the restaurant
they went -- or the karaoke bar they went to?
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21-10539 Opinion of the Court 39
pearance outside the courtroom setting, as they had been with
him when he was arrested. Combined, the two agents had con-
tact with Ware for five hours—Agent Winn for one, and Agent
Costa for four. This is greater familiarity than other circuit courts
have required to produce admissible lay identification testimony.
Additionally, and going to the first Pierce factor, both agents famil-
iarized themselves with Ware less than two weeks after the last
robbery. The jury, though also capable of comparing Ware in the
courtroom with the photos found on the cellphone (as discussed
by Agent Winn) and the robbery surveillance videos (as discussed
by Agent Costa), was looking at Ware almost two years later.
As for the second of the two Pierce factors relevant here,
whether intentionally or not, Ware “altered his appearance prior
to trial.” Pierce, 136 F.3d at 775. He had grown his hair out,
A. Yes, sir, I have.
Q. Could you tell what the occupants were wearing
when they got out of the car?
A. It appeared one was wearing the upper red area with
possibly black pants, and the second one wearing all dark
clothing.
The District Court overruled the objection, stating that the attorney could
make his point on cross-examination. Assuming arguendo that (a) Ware has
properly presented this officer’s testimony to our Court by challenging the
identification testimony of “law enforcement officers, including Agents Winn
and Costa,” Appellant Br. at 31, and (b) this particular exchange fails our
Pierce analysis, this testimony was harmless. The detective’s identification of
the men’s clothes constituted a mere drop in the, at the very least, bathtub of
evidence the Government presented. See infra part I.C.
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40 Opinion of the Court 21-10539
gained a little weight, and presumably looked two years older.
Though the jury retained the ultimate duty to decide if the agents
were credible and to analyze the surveillance footage and photo-
graphs themselves, Agents Winn and Costa added a level of famil-
iarity contemporaneous to the charged offenses that the jury
could not hope to attain. And that added familiarity consisted of
much more than knowing the defendant outside of the “sterile
courtroom setting.” Pierce, 136 F.3d at 774 (citation omitted).
Under these facts, we are confident that the agents’ lay testimony
fell on the admissible side of the continuum.15 The District Court
therefore did not abuse its discretion in admitting the agents’ tes-
timony.
IV.
“We review a district court’s jury instructions for an abuse
of discretion.” United States v. Williams, 541 F.3d 1087, 1089 (11th
Cir. 2008) (per curiam) (citation omitted).
“Evidence of flight is admissible to demonstrate conscious-
ness of guilt” from which a jury can infer actual guilt. United
States v. Blakey, 960 F.2d 996, 1000 (11th Cir. 1992). Where prose-
cutors run into trouble in presenting evidence of flight to a jury is
where the inferential chain between flight or concealment and
15 It is worth noting that Agent Winn’s testimony is a closer call than Agent
Costa’s. Agent Winn identified Ware in selfie pictures for the jury. Taking
the Government’s assertions—which were not challenged—as to how
Ware’s appearance changed between arrest and trial as true, however, Agent
Winn still provided a helpful additional element to the jury.
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21-10539 Opinion of the Court 41
consciousness of guilt is so attenuated to not be responsibly left to
the jury for fear of prejudicing the defendant or drawing unneces-
sary attention to a likely meaningless act. “The cases in which
flight evidence has been held inadmissible have contained particu-
lar facts which tend to detract from the probative value of such
evidence.” United States v. Borders, 693 F.2d 1318, 1325 (11th Cir.
1982). For instance, the probative value of flight evidence dimin-
ishes if the defendant “committed several unrelated crimes” or if
“there has been a significant time delay between the commission
of the crime”—or when the defendant discovered he was wanted
for a crime—and the time of flight. Williams, 541 F.3d at 1089(quoting Blakey, 960 F.2d at 1000–01).
Importantly, Ware did not object to the introduction of
any evidence of flight or concealment. Rather, he objected to the
flight or concealment jury instruction. “We will not reverse a de-
fendant’s conviction based on a challenge to the jury charge un-
less we are ‘left with a substantial and ineradicable doubt as to
whether the jury was properly guided in its deliberations.’” Unit-
ed States v. House, 684 F.3d 1173, 1196 (11th Cir. 2012) (quoting
United States v. Felts, 579 F.3d 1341, 1343 (11th Cir. 2009)).
The District Court did not abuse its discretion in instruct-
ing the jury as to flight or concealment. The Government pre-
sented evidence that when FBI agents arrested Ware, he was hid-
ing under a bed. At the risk of explaining the obvious, conceal-
ment includes hiding. See Concealment, Oxford Eng. Dict. (2d ed
1989) (defining concealment as “[t]he action of hiding anything
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42 Opinion of the Court 21-10539
from view”). Here, we do not have a situation similar to where
this Circuit has reversed a conviction due to erroneous flight or
concealment instructions.
In United States v. Myers, our predecessor Court reversed
Myers’s federal bank robbery conviction. 550 F.2d 1036, 1039 (5th
Cir. 1977). 16 Myers fled from law enforcement on two occasions.
Id. at 1048. The first time, FBI agents had been trying to contact
Myers by phoning his apartment. Id. The woman with whom he
shared the apartment answered multiple times and informed My-
ers that agents were looking for him but only to gather infor-
mation about a different person. Id. Later, one of the FBI
agents—in plain clothes—ran after Myers in a mall, and Myers
took off. Id.The second time, which was two months after the bank
robbery in Florida, FBI agents pursued Myers—who was on a mo-
torcycle and in California—in an unmarked car, crossing over the
center line and presenting the possibility of a head-on collision.
Id. at 1048–49. A plain clothes agent then emerged from the car,
and Myers and his comrade began moving away from the motor-
cycle before the agent identified himself and placed them under
arrest. Id. at 1049.
16 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc),
this Court adopted as binding precedent all decisions of the former Fifth Cir-
cuit handed down before the close of business on September 30, 1981.
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21-10539 Opinion of the Court 43
Regarding this second flight incident, the Court specifically
identified that (1) the fleeing evidence consisted of one FBI agent’s
testimony, which was inconsistent with regard to this flight event,
and (2) Myers had committed a second armed robbery in Penn-
sylvania between this arrest and the Florida robbery for which he
was tried. Id. at 1050. As for the first flight incident, the Court
stated that “[t]he more remote in time the alleged flight is from
the commission or accusation of an offense, the greater the likeli-
hood that it resulted from something other than feelings of guilt
concerning that offense” in reference to the agents chasing Myers
in the mall three weeks after the robbery and Myers leaving the
state between three and six weeks after the robbery. Id. at 1051.
To sum up its holding, the Myers Court set out four infer-
ences that a jury must be able to draw from the defendant’s be-
havior in order for flight (or concealment) to be relevant to a
showing of actual guilt:
[Flight or concealment’s] probative value as circum-
stantial evidence of guilt depends upon the degree of
confidence with which four inferences can be drawn:
(1) from the defendant’s behavior to flight; (2) from
flight to consciousness of guilt; (3) from conscious-
ness of guilt to consciousness of guilt concerning the
crime charged; and (4) from consciousness of guilt
concerning the crime charged to actual guilt of the
crime charged.
Id. at 1049.
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44 Opinion of the Court 21-10539
Here, the FBI arrested Ware a mere twelve days after the
New You Massage robbery. This is not a “significant time delay.”
Williams 541 F.3d at 1089. Further, Ware was likely not hiding
due to “several unrelated crimes.” Id. Though he presents the
possibility that he was hiding due to an outstanding parole viola-
tion, Appellant Br. at 37, we are not convinced this would mean
the District Court abused its discretion. The jury heard evidence
that Ware committed several related crimes, and that he searched
himself and the robberies on his cellphone. Such evidence also
supports the inference that Ware knew about the crimes and that
they were, in fact, crimes.
The District Court’s instruction also took great pains to ex-
plain to the jury that even if the jury finds that Ware hid from the
FBI, they need not necessarily find that such behavior evidenced
guilt. The District Court’s instruction walked the jury through all
the inferential steps from concealment to consciousness of guilt,
from consciousness of guilt to consciousness of guilt of these spe-
cific crimes, and from specific consciousness of guilt to actual
guilt. The District Court did not abuse its discretion in so in-
structing the jury.
The language of the instruction could not possibly have
been an abuse of discretion either. For one, the language was
taken from our Circuit’s pattern jury instructions. Eleventh Cir-
cuit Criminal Pattern Jury Instruction S19. While Ware properly
objected to the inclusion of the jury instruction, Ware raises for
the first time on appeal the suggestion that even if a jury instruc-
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21-10539 Opinion of the Court 45
tion was not an abuse of discretion, the exclusion of language in-
dicating that the jury had to find each inferential step beyond a
reasonable doubt was an abuse of discretion. To begin with, the
addition of this language was never suggested to the District
Court, thus giving the Court an opportunity to rule on the merits
of such an objection, so we can only review this contention for
plain error. 17 But again, the District Court used this Circuit’s pat-
tern instruction. It could not have plainly erred in this regard.
Additionally, the case Ware cites for the proposition that
the reasonable doubt standard must be included in the jury in-
struction does not alter our conclusion. See Williams, 541 F.3d
1087. The holding in Williams is that the district court did not
abuse its discretion in instructing the jury on flight or conceal-
ment, and those instructions happened to include the reasonable
doubt language. Id. at 1089. As a logical matter, a case that says it
was not an abuse of discretion to give a jury instruction that in-
cluded the reasonable doubt language does not mean that it would
be an abuse of discretion to give the jury instruction without that
language.
17 Under plain error review, the defendant must demonstrate that: (1) an
error occurred; (2) the error was plain—clear or obvious; and (3) the error
affected the defendant’s substantial rights. Rosales-Mireles v. United States, 138
S. Ct. 1897, 1904–05 (2018). “If all three conditions are met, an appellate
court may then exercise its discretion to notice a forfeited error, but only if
(4) the error seriously affect[s] the fairness, integrity, or public reputation of
judicial proceedings.” United States v. Lejarde-Rada, 319 F.3d 1288, 1290 (11th
Cir. 2003) (quotation marks and citation omitted) (alteration in original).
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46 Opinion of the Court 21-10539
Last, Ware’s brief urges this Court to, in the face of prece-
dent to the contrary, hold that flight instructions are not appro-
priate as a general matter, as they focus the jury’s attention on the
alleged flight. Appellant Br. at 38. Not only is this panel bound
by this Court’s precedential holdings, but we would be remiss if
we did not point out the incredibly steep cliff it is to argue that
the District Court abused its discretion in doing anything that is
firmly supported by Circuit precedent.
V.
Finally, while we normally also review sentences under an
abuse of discretion standard, see Gall v. United States, 552 U.S. 38,
41, 128 S. Ct. 586, 591 (2007), we review a district court’s factual
findings “for clear error, and its application of those facts to justify
a sentencing enhancement . . . de novo.” United States v. Castaneda-
Pozo, 877 F.3d 1249, 1251 (11th Cir. 2017) (citing United States v.
Matchett, 802 F.3d 1185, 1191 (11th Cir. 2015)).
“Section 2B3.1(b)(4)(B) ‘provides an enhancement for rob-
beries where a victim was . . . physically restrained by being tied,
bound, or locked up.’” United States v. Victor, 719 F.3d 1288, 1290
(11th Cir. 2013) (quoting U.S.S.G. § 2B3.1, cmt. background). The
enhancement, however, is not limited to those specific examples;
rather, it also applies when the defendant’s conduct “ensured the
victims’ compliance and effectively prevented them from leaving”
a location. Id. (internal quotation marks omitted) (quoting United
States v. Jones, 32 F.3d 1512, 1519 (11th Cir. 1994) (per curiam)).
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21-10539 Opinion of the Court 47
We have found the physical restraint enhancement to ap-
ply where a defendant “creates circumstances allowing [his vic-
tims] no alternative but compliance.” United States v. Whatley, 719
F.3d 1206, 1223 (11th Cir. 2013) (internal quotation marks omit-
ted) (quoting Jones, 32 F.3d at 1519).
The District Court properly applied the restraint sentenc-
ing enhancement here. 18 This Circuit’s precedent clearly indi-
cates that when an armed robber uses the threat of deadly force
with his firearm to compel a victim to move or to stay in place,
the enhancement applies. In United States v. Victor, we held that
the physical restraint enhancement could apply where a bank
robbery defendant pretended to have a firearm in his pocket, di-
rected a bank teller a short distance and “yelled that he had a gun
and would kill any bank employee who did not comply with his
demands.” 719 F.3d at 1289.
In another bank robbery case, this Court affirmed the ap-
plication of the enhancement where the defendants “forced [bank
employees and customers] at gunpoint into the safe room and or-
dered [them] to lie face down on the floor” as the robbers closed
the door and left. Jones, 32 F.3d at 1519. This warranted the en-
hancement despite the lack of physical contact, threats, or locking
the safe door because “the obvious presence of handguns ensured
18 Ware only challenges the enhancement as applied to the robberies at Lush
Nails & Spa, Royal Massage, and BD Spa. Appellant Br. at 45.
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48 Opinion of the Court 21-10539
the victims’ compliance and effectively prevented them from
leaving the room for a brief period.” Id.In yet another bank robbery case, this Court declined to
adopt a per se bar against applying the abduction enhancement19
where a defendant moved victims within a singular building.
Whatley, 719 F.3d at 1222. While the Whatley Court remanded for
sentencing due to the application of the abduction enhancement,
it did find the physical restraint enhancement appropriate where
the defendant ordered bank employees to the floor, into a bank’s
break room, into bank vaults, into a video surveillance room, and
into a kitchen area. Id. at 1209–11, 1223.
Ware argues that by minimizing the amount of physical
contact needed to trigger the restraint enhancement, we risk col-
lapsing the enhancement, making it applicable to every instance
of robbery with a firearm. But this is not true. We would have a
closer case if Ware had entered these establishments, pointed a
gun at the victim behind the welcome counter, demanded, “Your
money or your life,” obtained money from the victim, and left
without further incident. What Ware actually did, however, is
not analogous to this hypothetical situation.
At the Lush Nails & Spa robbery, a witness testified that
Ware and Smith entered the store, brandished their guns, and
told everyone not to move. Ware also pointed a gun in a cus-
19 The abduction enhancement adds four rather than two points to a de-
fendant’s sentence calculation. See U.S.S.G. § 2B3.1(b)(4)(A).
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21-10539 Opinion of the Court 49
tomer’s face while she was on the floor and threatened to kill her.
This constituted restraint as the threat of death and the instruc-
tion to not move ensured the victims’ compliance. At the Royal
Massage robbery, Smith grabbed an employee with his arm
around her neck and pointed his gun at her head, moving her be-
hind the front counter. Ware also forced a victim to the ground
at gunpoint. This is restraint. Smith literally restrained an em-
ployee by the neck; both Smith and Ware ensured compliance
and movement at the point of a gun. At the BD Spa and Wellness
Massage robbery, Ware forced an employee down the hall of the
establishment at gunpoint. This is certainly restraint as well. Just
as Ware tying the victim up and carrying her down the hallway
would have constituted restraint, so does him forcing her down
the hallway with the point of his gun.
Ware relies heavily on a Third Circuit test under which it is
quite probable that the sentencing enhancement would not apply
to these three robberies. See United States v. Bell, 947 F.3d 49 (3d
Cir. 2020). Bell, which further relies on cases from other circuits,
directly conflicts with established Eleventh Circuit precedent. It
goes without saying that Third Circuit precedent cannot super-
sede contrary Eleventh Circuit precedent in appeals to this Court.
Ware also argues in his brief that the same conduct cannot
be used for the bodily injury enhancement and the physical re-
straint enhancement. Assuming arguendo that this is true, a wit-
ness to the Lush Nails & Spa robbery testified that Ware and
Smith told the victims in the store not to move as they brandished
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50 Opinion of the Court 21-10539
weapons. There were therefore two distinct actions—this initial
instruction not to move and the later bodily injury inflicted on the
Lush Nails & Spa customer—that could activate a physical re-
straint enhancement and bodily injury enhancement without any
overlap. The District Court therefore did not err in applying the
physical restraint enhancement to the Lush Nails & Spa, Royal
Massage, and BD Spa robberies.
VI.
For the foregoing reasons, we hold that the District Court
did not abuse its discretion in not holding a formal Daubert hear-
ing before allowing the Government’s fingerprint expert to testi-
fy, in admitting Agent Winn and Agent Costa’s lay identification
testimony, or in instructing the jury on flight or concealment.
We also hold that the District Court did not err in applying the
physical restraint sentencing enhancement to the Lush Nails &
Spa, Royal Massage, and BD Spa robberies. Ware’s convictions
and sentence are therefore
AFFIRMED.