United States v. Wilbern

20-3494-cr
United States v. Wilbern
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
18th day of October, two thousand twenty-two.
Present:
ROSEMARY S. POOLER,
RAYMOND J. LOHIER, JR.,
WILLIAM J. NARDINI,
Circuit Judges.
_____________________________________
UNITED STATES OF AMERICA,
Appellee,
v. 20-3494-cr
RICHARD LEON WILBERN,
Defendant-Appellant.
_____________________________________
For Appellee: KATHERINE A. GREGORY, Assistant United States
Attorney, for Trini E. Ross, United States Attorney
for the Western District of New York, Buffalo, NY
For Defendant-Appellant: SARAH BAUMGARTEL, Federal Defenders of New
York, Inc., Appeals Bureau, New York, NY
Appeal from a judgment of the United States District Court for the Western District of New
York (Charles J. Siragusa, Judge).
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UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
Defendant-Appellant Richard Leon Wilbern appeals from a judgment of conviction,
entered against him on September 22, 2020, for a robbery resulting in death at a Xerox Federal
Credit Union in violation of 18 U.S.C. §§ 2113(a) and 2113(e).
On appeal, Wilbern argues that the district court erred by: (1) admitting into evidence low
copy number (“LCN”) DNA profiles; (2) preventing Wilbern from confronting every analyst
involved in generating the LCN DNA profiles; (3) prohibiting Wilbern from communicating with
his counsel overnight during trial; (4) refusing to investigate post-trial evidence of allegedly racist
remarks made by an alternate juror to another juror; and (5) admitting witness identifications
elicited under suggestive circumstances. We assume the parties’ familiarity with the case.
I. Admission of LCN DNA Evidence
Wilbern first argues that the district court erred by denying his motion to exclude LCN
DNA evidence under Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579 (1993). We disagree.
Federal Rule of Evidence 702 allows expert witness testimony if:
(a) the expert’s scientific, technical, or other specialized knowledge will help
the trier of fact to understand the evidence or to determine a fact in issue; (b) the
testimony is based on sufficient facts or data; (c) the testimony is the product
of reliable principles and methods; and (d) the expert has reliably applied the
principles and methods to the facts of the case.
Fed. R. Evid. 702. The proponent of the expert testimony bears “the burden of establishing by a
preponderance of the evidence that the admissibility requirements of Rule 702 are satisfied.”
United States v. Jones, 965 F.3d 149, 161 (2d Cir. 2020) (internal quotation marks omitted). The
determination of whether testimony is reliable and therefore admissible as an expert opinion is
multi-factored and flexible. Daubert, 509 U.S. at 592–94. Under Daubert, there are five non-
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exclusive factors that a court may consider in determining the reliability of expert testimony:
(1) whether a theory or technique has been or can be tested; (2) whether the theory
or technique has been subjected to peer review and publication; (3) the technique’s
known or potential rate of error; (4) the existence and maintenance of standards
controlling the technique’s operation[;] and (5) whether the technique is generally
accepted in the relevant scientific community[.]
Jones, 965 F.3d at 159 (internal quotation marks omitted) (quoting Daubert, 509 U.S. at 593–94).
A trial judge conducting this flexible inquiry has “considerable leeway” in determining whether to
admit expert testimony. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999).
Accordingly, a district court’s decision to admit or exclude expert scientific testimony is
reviewed for abuse of discretion and will be overturned only where the decision was “manifestly
erroneous.” Jones, 965 F.3d at 161–62 (internal quotation marks omitted). A decision to admit
expert testimony can be manifestly erroneous if, for example, the testimony is:
based on data, a methodology, or studies that are simply inadequate to support the
conclusions reached, or if the opinion is speculative or conjectural, . . . or if it is
based on assumptions that are so unrealistic and contradictory as to suggest bad
faith or to be in essence an apples and oranges comparison.
Id. at 162 (internal quotation marks and citations omitted). “But other contentions that the
assumptions are unfounded go to the weight, not the admissibility, of the testimony.” Id. (internal
quotation marks omitted).
After reviewing the trial record, we conclude that the district court did not abuse its
discretion in admitting the LCN DNA evidence, and we reject each of Wilbern’s arguments to the
contrary. First, it was not manifestly erroneous for the district court to conclude that LCN DNA
testing, as performed by New York City’s Office of the Chief Medical Examiner (“OCME”), was
generally accepted in the relevant scientific community. The DNA Subcommittee of the New
York State Forensic Science Committee had accepted the method, and the district court, as
additional support for its conclusion, reviewed expert testimony and evidence from other cases
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that indicated general acceptance. 1 Second, the district court did not abandon its role as an
independent gatekeeper. In fact, the district court looked beyond the endorsement of New York’s
DNA Subcommittee; specifically disclaimed any “rote reliance on prior court decisions,” Special
App’x 9; and listed five pages of exhibits it had considered as part of its examination of OCME’s
method, id. at 9–13. Finally, Wilbern’s argument that the district court disregarded evidence of
contamination and irregularities in the DNA profiles goes to the weight of the evidence, not its
admissibility.
II. Confrontation Clause
Wilbern next argues that the district court violated his Sixth Amendment right to confront
the witnesses against him by admitting LCN DNA profiles without the testimony of every analyst
personally involved in the DNA testing and editing process. We conclude that any hypothetical
violation of Wilbern’s right to confrontation would have been harmless in light of the other
overwhelming evidence that the government presented at trial to establish Wilbern’s guilt.
“Alleged violations of the Confrontation Clause are reviewed de novo, subject to harmless
error analysis.” United States v. Vitale, 459 F.3d 190, 195 (2d Cir. 2006). Such a violation “may
be held to have been harmless if the government can show beyond a reasonable doubt that the error
complained of did not contribute to the verdict obtained.” United States v. Casamento, 887 F.2d
1141, 1179 (2d Cir. 1989) (internal quotation marks omitted). The overall strength of the
government’s case is “probably the single most critical factor in determining whether error was
harmless,” Wray v. Johnson, 202 F.3d 515, 526 (2d Cir. 2000), but we also consider “the
1Those cases include People v. Megnath, 898 N.Y.S.2d 408 (Sup. Ct. Queens Cnty. 2010), and State v.
Rochat, No. 13-07-01002-I (N.J. Super. Ct. Bergen Cnty. 2017). Although Megnath and Rochat have since been
abrogated and overturned, respectively, both of these state court cases come from jurisdictions that still require the
proponent of expert testimony to meet the stricter test under Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), not
Daubert’s more flexible, factor-based test. See People v. Williams, 35 N.Y.3d 24, 37–38 (2020); State v. Rochat, 269
A.3d 1177, 1202 (N.J. Super. Ct. App. Div. 2022).
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prosecutor’s conduct with respect to the improperly admitted evidence”; “the importance of the
wrongly admitted testimony”; and “whether such evidence was cumulative of other properly
admitted evidence,” United States v. Groysman, 766 F.3d 147, 155 (2d Cir. 2014) (internal
quotation marks omitted). We have found violations of the Confrontation Clause to be harmless
error where “[t]he evidence of . . . guilt was overwhelming.” United States v. McClain, 377 F.3d
219, 222 (2d Cir. 2004).
Here, the government has met its burden of proving beyond a reasonable doubt that any
error would not have contributed to the guilty verdict. Without the DNA evidence, the
government’s evidence at trial still included the identification testimony of Wilbern’s former co-
worker, ex-girlfriends, and a close friend, as well as circumstantial evidence of Wilbern’s motive
and links to various objects connected with the robbery. Specifically, Wilbern’s former co-worker
testified that he recognized Wilbern from surveillance photos shown on television in the wake of
the robbery and that an FBI jacket worn by the person in the surveillance photos resembled an FBI
jacket Wilbern had worn to a Halloween party in the years leading up to the robbery. The
maintenance contractor who cleaned out Wilbern’s property following a foreclosure proceeding
years later discovered at the property an FBI jacket, which the contractor testified “look[ed] exactly
the same” as the FBI jacket shown in the surveillance photos. App’x 2207. Two of Wilbern’s ex-
girlfriends separately identified Wilbern as the person in the surveillance photos. And Wilbern’s
close friend testified that the person in the one of the surveillance photos resembled Wilbern. The
same close friend also testified that, in the years leading up to the robbery, he and Wilbern traveled
to Japan together at least three or four times a year. During these trips, they visited souvenir stores
that sold law enforcement memorabilia, including badges and jackets branded with the names of
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various federal agencies. Moreover, an umbrella that the robber left behind at the scene had a
Japanese sticker on it that translated to a Japanese name and a Shinto shrine located in Japan.
As additional circumstantial evidence, multiple witnesses testified that Wilbern felt
mistreated by Xerox and had unsuccessfully sued the company for discrimination after being fired.
Wilbern had an account at the Xerox Credit Union, which he had visited more frequently in the
weeks leading up to the robbery. And further testimony and documentary evidence indicated that
Wilbern had been struggling financially in the years leading up to the robbery. Wilbern’s height
also matched the height of the suspect as determined by the FBI’s Forensic Audio-Video Image
Analysis Unit. Taken together, the multiple identifications and circumstantial evidence of
Wilbern’s motive and connections to evidence at the scene of the robbery amounted to
overwhelming evidence of Wilbern’s guilt.
III. Communications with Counsel During Trial
Wilbern also argues that the district court violated his Sixth Amendment rights by
instructing his counsel not to communicate with him during one overnight break during trial.
Wilbern concedes that this issue is subject to plain error review because his trial counsel did not
object to the district court’s instruction. See Appellant’s Br. 63. And under that standard, “before
an appellate court can correct an error not raised at trial, there must be (1) error, (2) that is plain,
and (3) that affect[s] substantial rights.” United States v. Gomez, 705 F.3d 68, 75 (2d Cir. 2013)
(internal quotation marks omitted). “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.” Id. (internal quotation marks
omitted). We find no such plain error.
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During trial, Wilbern’s counsel alerted the district court to the existence of a potential
conflict of interest and requested appointment of separate counsel pursuant to United States v.
Curcio, 680 F.2d 881 (2d Cir. 1982). The district court appointed conflict-free counsel who, after
consulting with Wilbern, told the district court that he would need additional time to gather
information from the other attorneys involved before making any recommendations to Wilbern.
Taking into account the availability of the various attorneys involved, the district court decided to
excuse the jury for the day and stated that it was “probably best right now” for Wilbern’s trial
counsel “not to communicate with Mr. Wilbern” until the matter could be resolved the next day.
App’x 1594. Wilbern waived any conflict the next morning after a Curcio hearing. Wilbern’s
counsel then informed the district court that, during the time that the court had ordered her not to
speak with Wilbern, the government had identified a witness it intended to call the following day.
Wilbern’s counsel, not having been able to speak with Wilbern, told the court that she was not
prepared to cross-examine the witness. The court permitted the government to begin its direct
examination, but granted Wilbern’s counsel an additional day to prepare her cross-examination.
It was not plain error for the district court to appoint conflict-free counsel and inform
potentially conflicted counsel that it was “probably best” not to communicate with Wilbern until
any conflict could be resolved the following day. The district court faced a unique dilemma. It
had to simultaneously try to safeguard Wilbern’s Sixth Amendment right to unconflicted counsel
and preserve his counsel’s ability to adequately represent him by giving her enough time to consult
with Wilbern prior to cross-examining the government’s witness. Wilbern points to no case in
which a district court has faced such a dilemma, and certainly no case in which the Supreme Court
(or we) have suggested that the district court’s approach to solving such a dilemma was
impermissible. Likewise, it cannot be said that the district court’s effort to balance Wilbern’s
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competing Sixth Amendment interests undermined the fairness, integrity, or public reputation of
the proceedings.
IV. Investigation of Post-Trial Evidence of Juror Conduct
Wilbern further argues that the district court abused its discretion by failing to sufficiently
investigate allegations that an alternate juror made a racist comment during the trial. “[A] post-
verdict inquiry into allegations of [juror] misconduct is only required when there is clear, strong,
substantial and incontrovertible evidence that a specific, nonspeculative impropriety has occurred
which could have prejudiced the trial of a defendant.” United States v. Baker, 899 F.3d 123, 130
(2d Cir. 2018) (internal quotation marks omitted). “[T]he trial judge has broad flexibility in
responding to allegations of juror misconduct, particularly when the incidents relate to statements
made by the jurors themselves, rather than to outside influences.” Id. at 131 (internal quotation
marks omitted). This Court reviews a trial judge’s treatment of alleged jury misconduct for abuse
of discretion. Id. at 130. And a trial judge’s inquiry into post-verdict allegations of juror
misconduct is further curtailed by the no-impeachment rule embodied by Rule 606(b)(1) of the
Federal Rules of Evidence, which prohibits jurors, with certain exceptions, from impeaching their
verdict by testifying about the effect of any juror misconduct on that verdict.
The district court did not abuse its discretion by declining Wilbern’s request to investigate
the alleged jury misconduct. Specifically, an investigator working with Wilbern’s defense team
contacted jurors after the end of the trial and spoke with several of them, including the foreman.
The foreman was the only seated black juror. At a later hearing, the investigator testified that the
foreman mentioned to him that another juror had approached the foreman and reported comments
made by an alternate juror about skin color that the reporting juror considered racist. The foreman
told the investigator that he did not take any action with respect to the reported comments because
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the juror who had allegedly made them remained an alternate. The investigator also testified that
the foreman never indicated that he believed that the guilty verdict was reached on the basis of
Wilbern’s race and further testified that none of the five jurors that she spoke with said anything
indicating that race had any effect on the outcome of the trial.
Wilbern asked the district court either to allow the defense to interview the foreman further
or to conduct its own investigation into the conduct. The district court denied Wilbern’s
application for further investigation. It reasoned that an investigation into and evaluation of the
alternate juror’s pre-deliberation statement to the reporting juror would fall within Rule
606(b)(1)’s no-impeachment rule. And it concluded that there was “no basis, other than rank
speculation, to suggest that the verdict in this case was infected in any way by racial animus.”
Special App’x 122.
In sum, the comment reported by the investigator—that the foreman had reported that
another juror had reported that an alternate juror had made a racist remark—was too attenuated to
constitute “clear, strong, and incontrovertible evidence” that any of the jurors were “animated by
racial bias or hostility,” let alone the reporting juror. See Baker, 899 F.3d at 134.
V. Admission of Witness Identifications
Additionally, Wilbern argues that his due process rights were violated by the admission of
identification testimony that was the result of impermissibly suggestive police tactics. This Court
reviews the district court’s determination of the admissibility of identification evidence for clear
error and its decision not to hold an evidentiary hearing for abuse of discretion. United States v.
Gershman, 31 F.4th 80, 93–94 (2d Cir. 2022). Upon review of the entire record, we conclude that
the district court neither clearly erred in admitting the identification testimony nor abused its
discretion in declining to hold an evidentiary hearing.
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* * *
For the reasons stated above, the judgment of the district court is AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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