United States v. Clinton Ross, II

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 00-1318/3598
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United States of America, *
*
Appellee, *
*
v. * Appeal from the United States
* District Court for the Southern
Clinton Earl John Ross, II, * District of Iowa.
Also Known as *
Matthew James McCallister, *
Appellant. *
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Submitted: March 13, 2001
Filed: August 29, 2001
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Before MORRIS SHEPPARD ARNOLD and HEANEY, Circuit Judges, and
TUNHEIM,1 District Judge.
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MORRIS SHEPPARD ARNOLD, Circuit Judge.
Clinton Ross, II, appeals from his convictions on three counts of bank robbery,
three counts of carrying and using a firearm during a crime of violence, one count of
possessing an unregistered firearm, and one count of being a felon in possession of a
firearm. See, respectively, 18 U.S.C. § 2113(a), § 2113(d); 18 U.S.C. § 924(c)(1)(A),
1
The Honorable John R. Tunheim, United States District Judge for the District
of Minnesota, sitting by designation.
§ 924(c)(1)(A)(ii), § 924(c)(1)(B)(i); 26 U.S.C. § 5841, § 5861(d); and 18 U.S.C.
§ 922(g) (1). He also appeals from the trial court's denial of his motion for a new trial
based on juror misconduct.
We affirm the judgment of the trial court.2
I.
Mr. Ross asserts first that the trial court erred in denying his motion to suppress
evidence seized from his car, his business, his home, and a hotel room. The
government, however, maintains that the officer who had stopped him for a traffic
violation had probable cause to search a duffle bag in his car, and that the items that the
officer seized from that bag (a shotgun, a ski mask, two coats, gloves, and a pair of
boots), along with other information that law enforcement agents had gathered, gave
authorities a sufficient factual basis for obtaining search warrants to search the
business, home, and hotel room. Mr. Ross does not dispute that there was probable
cause to issue the warrants, but he contends that the officer who stopped him did not
have probable cause to search the duffle bag and therefore that all of the evidence that
was seized should have been suppressed.
The proof at the suppression hearing tended to show that the officer who stopped
Mr. Ross's car asked to take "a quick look through" the car, and that Mr. Ross replied,
"Go ahead." While Mr. Ross did grow impatient, asked how much longer the search
would take, and indicated that he needed to be on his way, a few minutes after the
traffic stop began a drug dog ("Derry") indicated the presence of drugs in the back of
the car. The district court held that the officer had not exceeded the consent that
Mr. Ross had given before Derry alerted on the car, and that Derry's actions gave the
officer probable cause to search the car and its contents.
2
The Honorable Charles R. Wolle, United States District Judge for the Southern
District of Iowa.
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We detect no error of law or fact in this conclusion. Derry quite clearly arrived
before Mr. Ross's consent to a "quick look through" expired, and his expressions of
impatience did not amount to an " 'unequivocal act or statement of withdrawal' "
indicating an intent to revoke his consent, United States v. Martel-Martines, 988 F.2d
855, 858 (8th Cir. 1993), quoting United States v. Alfaro, 935 F.2d 64, 67 (5th Cir.
1991); see also United States v. Layton, 161 F.3d 1168, 1171 (8th Cir. 1998). The
detention and search were therefore certainly valid up to the point of Derry's arrival,
and we have held that a trained dog's indication that drugs were present in a car gives
an officer probable cause to search it. See United States v. Bloomfield, 40 F.3d 910,
919 (8th Cir. 1994), cert. denied, 514 U.S. 1113 (1995).
Although Mr. Ross objects that Derry was not reliable because he had not been
certified since 1997, we conclude that the record contained more than sufficient
evidence to support a finding of reliability. For instance, as Mr. Ross himself noted in
his brief, there was testimony that after Derry had returned to service after a brief
hiatus, he had indicated the presence of drugs six times and on all six occasions drugs
had been found.
The district court's conclusion that the search was valid finds additional support
in the fact that before Derry arrived on the scene the officer who effected the search
had already observed drug paraphernalia in the car and that Mr. Ross resembled the
composite sketch of a bank robber. The officer testified, moreover, and the district
court found as a fact, that his suspicions were aroused when Mr. Ross had given him
inconsistent stories about his destination. In the circumstances, it is plain to us that the
officer had probable cause to believe that the car contained evidence that a crime was
being committed.
Mr. Ross also maintains that the trial court erred when it admitted expert
testimony concerning footprints and tire imprints found in the snow at the scene of one
of the bank robberies with which he was charged. An FBI forensic examiner
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specializing in this kind of evidence offered her opinion that the footprints matched the
boots seized from Mr. Ross's car and that the tire imprints bore many similarities to the
tire treads of a vehicle that Mr. Ross had borrowed at the time of one of the bank
robberies. The trial court concluded, after a hearing in limine, that the evidence met
the requirements of Fed. R. Evid. 702 and of Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 592-95 (1993), and thus was admissible at trial.
Our examination of the record leads us to conclude that there was no error here.
It is familiar law that persons with specialized knowledge may offer their expert
testimony if it would be helpful to the jury's understanding of the case. See, e.g.,
United States v. Withorn, 204 F.3d 790, 796 (8th Cir. 2000). The instant case is on all
fours with United States v. Rose, 731 F.2d 1337, 1345-46 (8th Cir. 1984), cert. denied,
469 U.S. 931 (1984), where we upheld expert testimony with respect to footprints.
Mr. Ross's objection to the admission of this evidence was wholly without merit and
the trial court did not err in overruling the objection.
Mr. Ross contends, finally, that the evidence presented at his trial was
insufficient to support his conviction, but the record persuades us otherwise. A
distinctive modus operandi ran through all of the robberies like a thread, victims
identified some of the items used in the robberies, a forensic examiner tied Mr. Ross
to one of the crime scenes, and the government offered evidence that Mr. Ross was in
financial straits and had discussed the possibility of robbing banks with an
acquaintance. Items seized from Mr. Ross's car, moreover, included the exact number
of two-dollar bills taken in one of the robberies, straining the bounds of coincidence.
More damaging still was testimony from two witnesses that Mr. Ross admitted to them
that he had committed the crimes of which he was convicted. This evidence alone
(there was more) was sufficient to convict Mr. Ross, because a reasonable mind could
accept it as proof beyond a reasonable doubt of his guilt. See, e.g., United States v.
Moore, 212 F.3d 441, 445 (8th Cir. 2000). In fact, we could characterize the case
against Mr. Ross as overwhelming.
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II.
Almost a year after Mr. Ross was convicted, he moved for a new trial because
one of the jurors in his trial had failed to disclose on her questionnaire and at voir dire
the fact that she had been accused of felonies and convicted of a number of
misdemeanors. At the hearing on the motion, Mr. Ross's counsel testified that if the
juror had answered truthfully, counsel would have asked further questions of her to
determine whether he had grounds for a challenge for cause. The trial court denied the
motion.
We detect no error here. The trial court correctly applied the principles outlined
in McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548, 556 (1984), and
concluded that while the juror had not answered the questions accurately, her incorrect
answers were due to an honest mistake. This holding is not clearly erroneous,
especially since the credibility of a witness is a matter for the fact finder. See, e.g.,
United States v. Nation, 243 F.3d 467, 471 (8th Cir. 2001).
The trial court also held that even if the information that the juror withheld from
the defendant had been available to him, there would have been no basis for a challenge
for cause. We agree with this holding as well. Mr. Ross's hypothesis that the juror
would have been biased in favor of the government because in the past she had had
felony charges against her reduced to misdemeanors is wholly speculative. Whatever
inference of pro-government inclination such a fact creates is insufficient to entitle
Mr. Ross to a challenge for cause. If anything, it seems to us that the juror's previous
brushes with the law would create a stronger opposite inference -- one that she might
well be biased in favor of defendants in general. In any event, the trial court correctly
rejected Mr. Ross's motion for a new trial.
III.
For the foregoing reasons, we affirm the judgment of the trial court in all
respects.
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A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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