United States v. Dontrell Moore ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 07-3978
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
D ONTRELL O RLAND M OORE,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Indiana, Fort Wayne Division.
No. 07 CR 13—Theresa L. Springmann, Judge.
A RGUED N OVEMBER 4, 2008—D ECIDED JULY 9, 2009
Before P OSNER, W OOD , and T INDER, Circuit Judges.
T INDER, Circuit Judge. In the early afternoon of
January 23, 2007, three men robbed a branch of Tower
Bank in Fort Wayne, Indiana. During the robbery, at
1:49 p.m., police officers in the Northeast Indiana Federal
Bank Robbery Task Force received an automated text
message that the bank had been robbed and that a GPS
system embedded in the stolen money was transmitting
its location. The GPS was designed to begin transmitting
2 No. 07-3978
its location as soon as it left the bank drawer where it
was kept. Detective Robison, of the Task Force, used a
handheld tracker to follow the GPS to the 4200 block of
Darby Drive in Fort Wayne. He arrived there ten
minutes from the time he received the text indicating
the bank had been robbed and joined other law enforce-
ment units that were already in the area at the time. The
GPS indicated that it was transmitting within 50 feet
of what the GPS identified as 4229 Darby Drive (there
is no such address) when it stopped transmitting.
The GPS information, combined with fresh tire tracks
at the scene (it was a snowy day), led Robison to
believe that the bank robbers had entered the home at
4217 Darby Drive. The police staked out the location,
ensuring that nobody came or went, and sought a war-
rant to enter the home. Fortuitously, Kenyatta Lewis, the
4217 homeowner, arrived home from work with his
wife about three hours into the stakeout. The police asked
him for permission to search the house, which he granted.
The police first entered the house through the garage,
where (because of the tire tracks) the police believed the
bank robbers entered. As the police prepared to enter
the main part of the house, Joseph Lewis 1 , Kenyatta’s
cousin, walked into the garage and was promptly arrested.
The police proceeded through the house to the second
floor, where they arrested the defendant, Dontrell Moore,
1
Avid readers of Seventh Circuit opinions may remember
Joseph Lewis from United States v. Lewis, 567 F.3d 322 (7th
Cir. 2009), where we upheld his conviction for the same robbery.
No. 07-3978 3
who was seated on the toilet in the bathroom, and Dawan
Warren, who appeared to be sleeping in one of the bed-
rooms.
In the room where Warren was found, the police
spotted an access panel to the attic, and in the attic they
found a variety of clothes that did not belong to the
Kenyatta Lewis household, including two masks, a hat, a
blue pair of nylon sweatpants with a white stripe, and a
football jersey. They also found the smashed GPS trans-
mitter taken from the bank, a black bag with an Ozark
Trail label, a gun, bait money and money straps from the
bank, and currency totaling $9,308. The police also found
latex gloves (matching gloves a teller described on the
robbers) in the car parked in the garage. The three men,
Joseph Lewis, Dawan Warren, and Dontrell Moore, were
indicted for bank robbery (count I) and using a firearm
during a robbery (count II) and tried separately. At
his trial, Moore was convicted of both counts.
He appeals, arguing that the evidence was insufficient
to convict him on either count.
Count I
“A defendant faces a nearly insurmountable hurdle
in challenging the sufficiency of the evidence to sustain a
conviction.” United States v. Woods, 556 F.3d 616, 621 (7th
Cir. 2009) (quotations and citation omitted). Moore must
convince us that even “after viewing the evidence in the
light most favorable to the prosecution, no rational trier
of fact could have found him guilty beyond a reasonable
doubt.” Id. “[W]e will overturn a conviction based on
4 No. 07-3978
insufficient evidence only if the record is devoid of evi-
dence from which a reasonable jury could find guilt
beyond a reasonable doubt.” United States v. Farris, 532
F.3d 615, 618 (7th Cir. 2008) (citation omitted).
Moore’s appeal requires us to articulate the somewhat
difficult-to-describe distinction between our role, on
review, to correct errors in the trial process and the
jury’s role, at trial, to act as the final arbiters of the facts
of any given case. Our deference to the jury’s role is
expressed most plainly in Jackson v. Virginia, 443 U.S.
307 (1979):
[T]he critical inquiry on review of the sufficiency of
the evidence to support a criminal conviction must
be not simply to determine whether the jury was
properly instructed, but to determine whether the
record evidence could reasonably support a find-
ing of guilt beyond a reasonable doubt. But this
inquiry does not require a court to ask itself
whether it believes that the evidence at the trial
established guilt beyond a reasonable doubt.
Instead, the relevant question is whether, after
viewing the evidence in the light most favorable to
the prosecution, any rational trier of fact could
have found the essential elements of the crime
beyond a reasonable doubt.
Id. at 318-19 (1979) (quotations and citations omitted)
(emphasis in the original).
In other words, our task is not to determine whether or
not we think Moore was actually guilty of the bank rob-
bery; we must only ask whether a rational jury could have
No. 07-3978 5
believed he was, and believed so beyond a reasonable
doubt. A verdict may be rational even if it relies solely on
circumstantial evidence. United States v. Robinson, 177
F.3d 643, 647 (7th Cir. 1999). The question we must
answer is whether “each link in the chain of inferences”
the jury constructed is “sufficiently strong to avoid a
lapse into speculation.” United States v. Jones, 371 F.3d
363, 366 (7th Cir. 2004) (quoting United States v. Peters,
277 F.3d 963, 967 (7th Cir. 2002)). Complicating matters
is that in circumstantial cases “we face head-on the dis-
turbing truth that guilty verdicts rest on judgments
about probabilities and those judgments are usually
intuitive rather than scientific.” Stewart v. Coalter, 48
F.3d 610, 614 (1st Cir. 1995).
The task for this jury was to determine whether
Dontrell Moore was the man identified by the govern-
ment as Robber #2—the masked man who was photo-
graphed holding a bag as bank employees filled it with
money from the bank’s vault. The government asked
the jury to infer that because law enforcement had
arrived at the Darby Drive address within ten minutes
of the robbery and found items in the house connected
with the robbery along with three men who matched the
descriptions given by the bank’s employees, the three
men robbed the bank. And because, of the three, Dontrell
Moore resembled most closely Robber #2, the govern-
ment contends that there was sufficient evidence for the
jury to convict Moore. Furthermore, the government
points out that the identification of the other two people
in the house, Warren and Lewis, is solid—Lewis, because
of his unusually heavy build, and Warren, because the
6 No. 07-3978
police took $20 of bait money off him when they booked
him into the Allen County Jail (both of these facts were
presented to the jury unchallenged).
But we must deal with Moore. His theory of the case
is that his description does not really match up with
Robber #2’s description and that because of the ill fit, the
government cannot put Moore in the bank. And, if the
government cannot put Moore in the bank, all the gov-
ernment can prove is his presence in the house where
the other robbers were caught. “Mere presence,” he tells
us, is not enough to tag him with a bank robbery convic-
tion. Furthermore, a third of the money from the robbery
is missing.2 This, he argues, supports his theory that
even though the other two guys in the house robbed
the bank, they did it without him.
The evidence from the bank employees and bank security
system is about what you’d expect from a frantic event
like a bank robbery. The terrified witnesses often had
their eyes closed or avoided directly looking at the
robbers; the robbers were masked and generally appear
almost as blurs on the stills captured from the bank
security feed. It is undisputed that three African-American
men robbed the bank; it is also undisputed that at least
2
Actually, according to the Presentence Report, about 40% of
the money stolen from the bank was not recovered. Whether
this helps or hurts the defendant’s case is immaterial because
at trial, a government witness testified that “a little more than
a third of the money” is missing, and we base our review of
the case on the evidence before the jury.
No. 07-3978 7
one of the men was shorter and very heavy, a description
that matches Joseph Lewis, the cousin of the Darby Drive
homeowner (Joseph Lewis is apparently 5’7”-5’8” tall and
weighs 280 pounds). Robber #1, Dawan Warren, was
identified as wearing a sweatshirt or flannel shirt over a
jersey with a Number 7 on it, and this matches up to
the jersey found in the attic at Darby Drive.3
But Robber #2, who the jury found to be Dontrell Moore,
was not so clearly described. Evidence before the jury
included descriptions of Robber #2 that estimated his
height as anywhere from 5’7” to 6’1”. Dontrell Moore is
6’5”. Robber #2 was also described as being slender
(like Moore) and wearing a ski mask slightly askew so
that one of the bank employees could see facial hair
(which Moore wore). We can also see from the bank
surveillance photos that he appeared to be wearing bluish-
green pants and white tennis shoes.4 The bank photos
also seem to confirm the witnesses’ description of his
attire as being “layered” (perhaps because he was
3
Which, by the way, was a replica of the NFL jersey worn by
Michael Vick, previously quarterback for the Atlanta Falcons.
Vick has been dogged by legal troubles of his own. See Juliet
Macur, Vick Receives 23 Months and a Lecture, N.Y. T IMES , Decem-
ber 11, 2007, available at http://www.nytimes.com/2007/12/11/
sports/football/11vick.html.
4
There is nothing in the record about what Moore was
wearing when he was taken into custody. The pants found in
the Darby Drive attic had a white stripe but, of course, if worn
inside-out they could have been indistinguishable from the
pants Robber #2 is described, and photographed, as wearing.
8 No. 07-3978
wearing multiple sets of clothing—and remember, a
variety of unaccounted-for clothing was found in the
Darby Drive home). One employee testified that she
saw someone leaving the bank and that he had long hair,
possibly in braids or cornrows. Dontrell Moore wore his
hair in braided cornrows that, according to his mug shot
from the day of the robbery, would possibly hang below
the base of a ski mask (although from the testimony it’s
unclear whether the man the employee saw was wearing
a ski mask; neither the defendant nor the government
clarified).
Moore points to other evidence, or the lack thereof, to
magnify the uncertainty of the identification.5 For one
thing, the missing money led to a second search of the
Darby Drive address the day after the robbery. No addi-
tional money was found. Moore also alerts us to the
fact that the gang apparently ditched a stolen getaway
car less than a mile from the bank and switched to
Joseph Lewis’s car, the one found in the 4217 Darby Drive
garage.
5
Bank employees also testified that Robber #2 was carrying a
dirty white canvas bag the size of a pillowcase, but the photo of
Robber #2 in the vault clearly shows him carrying a black bag
with a white design that matches a description of the one
taken from the attic introduced at trial. This refutes Moore’s
argument (made here and before the jury) that the missing
dirty white canvas bag points to a different robber. Moreover,
because the employees were clearly wrong about the bag
Robber #2 was carrying, the jury (who could review the bag
and the photos) may have been more likely to excuse the
discrepancies in their testimony regarding his height.
No. 07-3978 9
Moore uses these facts, developed exclusively in the
government’s case, to construct the following scenario
presented both in his argument on appeal and to the
jury. Suppose that a man shorter than Moore (but still
taller than Lewis and Warren) robbed the bank with
Joseph Lewis and Dawan Warren. Lewis and Warren
split up with the man immediately after the robbery and
drove to 4217 Darby Drive together and entered the
house. Moore joined them there. But because police
positioned themselves around the house so shortly after
the robbery, we would have to assume that Moore either
entered the house to join Warren and Lewis less than ten
minutes from the time the bank was robbed or that he
arrived with the two before the robbery and remained
there while they robbed the bank. Moore argues that
either way, this scenario accounts for his presence in the
house and takes him out of the bank.
But his hypothesized version of events is implausible
at best. Moore did not know the owner of the home in
which he was arrested, and the homeowner testified at
trial that neither Moore nor the other two men in the
house (even the homeowner’s cousin) was authorized to
be there. The police had the house staked out ten
minutes after the robbery and, upon entering, they
found that the door from the garage to the home had
been busted, apparently recently. The time frame
implies that the men in the home did not arrive after
the GPS had entered the house and the busted door
(along with the homeowner’s testimony) tells us that the
men had no authorization to be there and that there
could be no innocent explanation for their presence. The
10 No. 07-3978
lack of innocent explanation is crucial because of the
money, clothes, gun, and GPS found in the attic of the
home—all of which tied at least one person in the house
to the robbery.
In fact, once we are forced to account for Moore’s unau-
thorized presence in the house, we must agree with the
government that Moore was not convicted simply on
the basis of his presence in the house. Moore’s presence
in the house cannot be taken in isolation; he was present
in the house when police arrived ten minutes after a
bank robbery, he resembled a description of one of the
robbers, and he wasn’t supposed to be in the house.
Moore’s presence in the house reinforces the strength of
his similarity to the eyewitnesses’ description of Robber
#2. And, because his presence is so suspicious, it was
rational for the jury to consider this when deciding that
he was one of the robbers.
The defendant overstates the import of our “mere
presence” decisions to his case. We have held that “mere
presence while a crime is being committed is insufficient
to show that a defendant acted to further a conspiracy.”
Jones, 371 F.3d at 366 (quotation omitted). We have also
held that testimony placing a defendant at the scene of a
beating was not sufficient, “by itself,” to prove that he
took part in the beating. Piaskowski v. Bett, 256 F.3d 687,
692-93 (7th Cir. 2001). In other words, the “mere pres-
ence” cases tell us that a defendant cannot be convicted
simply for being in a given place. Here, there was a
multitude of factors—the eyewitness descriptions of
Robber #2, the tracking done by the GPS, the short
No. 07-3978 11
window between the robbery and the police presence at
4217 Darby Drive, the unauthorized nature of the defen-
dant’s presence in the home, and the evidence from
the robbery in the attic panel—that allowed the jury to
link his presence in the home to the events at the bank.
And, his presence in the bank is not so far-fetched as
to force us to begin constructing elaborate theories to
explain away his presence in the house. A witness testified
that she saw a man with long hair—“I don’t know if it
was dreadlocks or braids or what it was”—exiting the
bank; this was not rebutted. There is enough testimony
for the jury to believe that Robber #2 was the taller one
in the bank. While there was a wide range of descrip-
tions regarding his height, all the witnesses indicated
Robber #2 was the tallest one. Height is notoriously
difficult to gauge and it was up to the jury to resolve the
differing descriptions of Robber #2. See United States v.
Crotteau, 218 F.3d 826, 834 (7th Cir. 2000); United States v.
Hall, 165 F.3d 1095, 1107-08 (7th Cir. 1999). We are not
going to overturn a conviction simply because the gov-
ernment’s best witness misjudged Moore’s height by
4 inches.
So what we’re left with is the missing money. It lends
some support to the defendant’s thesis that there was
another, yet unidentified person, who participated in
the robbery, but we can think of a variety of other ex-
planations for its disappearance that conform with the
jury’s verdict. We could speculate that the money was
hidden elsewhere in the house and removed by a third
party after the three were taken into custody (note that
12 No. 07-3978
this conforms with the belief of the investigators who
searched Darby Drive again the day after the arrest. It
would also be no surprise if Kenyatta Lewis would con-
sider found money as reasonable compensation for the
busting of his door and the use of his home as a bank
robbers’ lair). We could guess that the money was lost
during the hurried switch in cars and was found and
pocketed by a not-so-good Samaritan passing by the
abandoned car or that a “getaway” driver arranged for
the theft of the vehicle later abandoned, drove the robbers
to Joseph Lewis’s car, and left with his or her share (or
more) of the loot. We could guess that the money was
discarded or destroyed by defendants who were worried
it was bait money. We could guess that a traumatized
bank employee took an unauthorized bonus, justifying it
as a form of hazard pay (or took the opportunity the
robbery presented to conceal earlier embezzlement). We
can’t know—but the fact of the missing money was
fully argued to and presumably considered by the jury,
and they resolved it in the government’s favor. The
chance that a different Robber #2 is on the loose is not
so great as to render a verdict against Moore irrational.
“[V]ariations in human experience suggest that one
should expect a considerable range of reasonable
estimates about what is likely or unlikely.” Stewart, 48
F.3d at 616. It seems to us that the problems with
Moore’s theory of events are more serious than the prob-
lem with the missing money in the version inculpating
Moore, which the jury adopted. We cannot say that his
proffered scenario is impossible, but we simply note that
Moore’s unexplained presence in the house makes the
resolution of the other issues in the case easier.
No. 07-3978 13
“Guilt beyond a reasonable doubt cannot be premised on
pure conjecture. But a conjecture consistent with the
evidence becomes less and less a conjecture, and moves
gradually toward proof, as alternative innocent explana-
tions are discarded or made less likely.” Id. at 615-16.
Given that there was no credible explanation for
Moore’s presence in the house, as well as the time
frame involved and Moore’s physical characteristics in
comparison with those described by the robbery victims,
it was rational for the jury to choose the government’s
theory of the case. Although this was a close circum-
stantial case, there was enough evidence of Moore’s
guilt to support the verdict. The conviction must stand.
Count II
It is easier to dispense with Moore’s dispute with his
conviction on the firearm count. Moore argues that even
if the jury could find that he was Robber #2, there was
insufficient evidence for the jury to convict him of using
or carrying a firearm during the robbery in violation of
18 U.S.C. § 924(c). Section 924(c) punishes a person
who, “during or in relation to any crime of violence . . .
uses or carries a firearm, or who, in furtherance of any
such crime, possesses a firearm.” Even though Moore
did not personally carry a gun, the jury was given an
aiding and abetting instruction; Moore argues that there
was insufficient evidence offered to prove that he
aided and abetted the offense.
Proving that a defendant aided and abetted the use of
a firearm requires evidence that “(1) the defendant
14 No. 07-3978
knew, either before or during the crime, of the principal’s
weapon possession or use; and (2) the defendant inten-
tionally facilitated that weapon possession or use once
so informed.” United States v. Taylor, 226 F.3d 593, 596
(7th Cir. 2000). “Merely aiding the underlying crime
and knowing that a gun would be used or carried cannot
support a conviction under 18 U.S.C. § 924(c).” United
States v. Woods, 148 F.3d 843, 848 (7th Cir. 1998). But,
“[o]nce knowledge on the part of the aider and abetter
is established, it does not take much to satisfy the facil-
itation element.” Id. (quotation omitted).
Here, if we review the facts in the light most favorable
to the government, we find that Warren ran into the
building with a gun. He ordered the bank employees to
let Moore into the teller area. Warren, carrying the
gun, and Moore went to the vault with the bank employ-
ees. Warren left (to loot the teller drawers) and Moore
held a bag while the bank employees filled the bag
with money. Then, Warren and Moore left the bank,
joined by Lewis, who had been out on the bank floor.
Moore argues that a jury could only determine from
the evidence at trial that he knew of Warren’s firearm
possession when they entered the vault together but not
before. Moore argues that after this point, where his
knowledge was established, there was no evidence that
he facilitated the use of this firearm in the robbery.
Moore concedes that a division of labor between armed
and unarmed robbers during a robbery may be sufficient
to satisfy facilitation, Woods, 148 F.3d at 848, but argues
that such a division did not occur here.
No. 07-3978 15
It is undisputed that Warren used the gun to force
the tellers to assist Moore in looting the vault. Moore’s
work with the tellers reduced the time needed for the
crime, a fact that is sufficient to establish facilitation.
While Warren gathered cash from the teller drawers,
Moore was in the vault with a bag taking money from
the bank employees. The jury could certainly infer that
Moore’s gathering of the cash made both robbers able
to accomplish the robbery more quickly. This would
satisfy the facilitation prong of the aiding and abetting
inquiry. See Taylor, 226 F.3d at 597 (finding that the defen-
dant’s assistance to the armed co-defendant met the
facilitation element); Woods, 148 F.3d at 848 (“[T]he use
of the gun in the bank expedited [co-defendant’s] looting
of the teller’s cash drawer, reducing the amount of time
the robbery took.”).
Conclusion
Because the jury could rationally connect the dots from
Moore’s presence in the house to the description of
Robber #2, and because Moore’s work in the bank vault
aided and abetted Warren’s use of the firearm, there was
sufficient evidence to convict the defendant on both
counts. His conviction is A FFIRMED.
7-9-09