PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v. No. 10-4768
CALVIN ANTONIO BONNER,
Defendant-Appellee.
Appeal from the United States District Court
for the Middle District of North Carolina, at Greensboro.
Thomas D. Schroeder, District Judge.
(1:09-cr-00246-TDS-1)
Argued: May 13, 2011
Decided: August 5, 2011
Before GREGORY, WYNN, and DIAZ, Circuit Judges.
Affirmed by published opinion. Judge Gregory wrote the
opinion, in which Judge Wynn and Judge Diaz joined.
COUNSEL
ARGUED: Terry Michael Meinecke, OFFICE OF THE
UNITED STATES ATTORNEY, Greensboro, North Caro-
lina, for Appellant. Robert Lynn McClellan, IVEY,
MCCLELLAN, GATTON & TALCOTT, LLP, Greensboro,
North Carolina, for Appellee. ON BRIEF: John W. Stone,
2 UNITED STATES v. BONNER
Jr., Acting United States Attorney, Greensboro, North Caro-
lina, for Appellant.
OPINION
GREGORY, Circuit Judge:
This case is about what constitutes a proper inference for
a jury to draw when making determinations of guilt. Calvin
Bonner was found guilty of armed robbery by a jury in Octo-
ber of 2009. In June of 2010, after a renewed motion for a
judgment of acquittal, the district court overturned his convic-
tion based on insufficient evidence. The government appealed
that ruling, arguing that, viewing the evidence in the light
most favorable to the government, the jury could have found
sufficient evidence to convict Bonner. We disagree with the
government and affirm the district court’s opinion. We do so
on the grounds that the government failed to produce suffi-
cient "identity" evidence placing Bonner at the robbery and
relied on unsubstantiated, unscientific inferences to bolster its
minimal evidence. We conclude that no reasonable jury could
find Bonner guilty beyond a reasonable doubt based on the
evidence presented at trial.
I.
The defendant, Calvin Bonner, was indicted by a federal
grand jury in the Middle District of North Carolina on July
27, 2009. The indictment alleged interference with commerce
by robbery in violation of 18 U.S.C. § 1951(A)(2) and the use
of a firearm during the crime in violation of 18 U.S.C.
§ 924(c)(1)(A)(ii).
Trial commenced on October 21, 2009. At the close of the
government’s case-in-chief, Bonner moved for a judgment of
acquittal pursuant to Rule 29 of the Federal Rules of Criminal
UNITED STATES v. BONNER 3
Procedure ("Rule 29"). The court reserved judgment. At the
close of Bonner’s case, Bonner renewed his motion, and the
court again reserved judgment. The government presented
rebuttal evidence, Bonner renewed his motion, and the district
court again reserved judgment. On October 22, 2009, the jury
returned a guilty verdict on both counts. On October 27, 2009,
Bonner renewed his motion again. On June 16, 2010, the dis-
trict court granted Bonner’s motion and entered a judgment of
acquittal. The government timely appealed.
The government alleged that on October 29, 2008, Darren
Moore, an employee of a Subway Restaurant, observed a
"pink" or "reddish" SUV parked at the back of the restaurant
around 10:00 PM while he was emptying a mop bucket. J.A.
110-11. About thirty seconds later, Mr. Moore testified that he
was confronted by two armed African American male assail-
ants with pantyhose over their faces, hooded sweatshirts, and
hats. Mr. Moore also testified that one robber was wearing a
black and white Yankees hat. The suspects forced Mr. Moore
into the restaurant, told him to call his supervisor, and ordered
him to the floor. One of the robbers then confronted Casey
Jones, the assistant manager, who gave him the money from
the cash register. Mr. Moore testified that the robbery took
roughly two minutes. After the robbers left, Ms. Jones called
the police. Mr. Moore quickly locked the back door first and
then moved to lock the front door. While locking the front
door, Mr. Moore observed the SUV he had seen earlier pull-
ing to the front of the restaurant and asked Ms. Jones to relay
the car’s description to the police. Ms. Jones described it as
a reddish pink Honda Passport. The only physical characteris-
tic of the robbers that Mr. Moore or Ms. Jones identified was
that each was an African American male.1
1
Detective Stephanie Murphy indicated that the store video showed that
at least one of the robbers was 300 pounds, but no description of Bonner
is provided in the record so it is not clear if he matches that description.
The video was shot from above and the robbers were wearing bulky coats
and thus it was hard to make out their physical characteristics.
4 UNITED STATES v. BONNER
The police were informed that two to three armed suspects
robbed a Subway restaurant and fled the scene. Detective
Andrew Eads responded to the call immediately. When he
was approximately twenty to thirty seconds away from the
Subway restaurant, Detective Eads received additional infor-
mation that the suspects had fled in a burgundy Honda SUV.
Detective Eads observed a burgundy Honda Passport exiting
the restaurant’s parking lot as he approached the scene. He
conducted a stop of the car and found one occupant, Terry
Bethea, with two small baggies of marijuana in his coat.
Later, during a search of the car, Detective Eads along with
Officer Brammer found several other items including: Bon-
ner’s identification and wallet, several rounds of .357 ammu-
nition, a toy gun, two walkie-talkies, registration of the car to
Tyra Edmonds (who was Bonner’s girlfriend at that time), and
some scattered clothing items. Three cell phones, belonging
to Mr. Bethea, Ms. Edmonds, and LaMont Ruth (Bonner’s
cousin), were also recovered. Bonner placed several short
calls to Ms. Edmonds’ and Mr. Ruth’s cell phones that night.
The time between Ms. Jones’ call to the police and Detective
Eads’ stop was approximately five minutes.
Surveillance footage revealed that Mr. Bethea, who was not
charged with anything in conjunction with this incident, did
not match the description of the robbers. Additionally, Mr.
Moore did not identify Mr. Bethea as one of the robbers and
told the detectives that the clothes recovered in the vehicle did
not match the clothing worn by the robbers. Ms. Jones also
testified that Mr. Bethea was not the robber because he was
not sufficiently bulky. About thirty minutes after the police
arrived, they asked Ms. Jones to identify a New York Yan-
kees baseball hat recovered near the dumpster behind the res-
taurant. The police recovered the hat after their second search
of the area surrounding the dumpster at the back of the restau-
rant.2 Ms. Jones identified the hat as belonging to one of the
2
At trial, the government contended that the robbers initially hid near
the scene when police arrived. Then, once police left the back area of the
restaurant, the robbers came out of hiding, fled, and dropped the hat as
they left.
UNITED STATES v. BONNER 5
robbers. Forensic evidence from the hat showed that there
were multiple DNA matches and that one of them, identified
as the "predominant" profile, belonged to Bonner. Special
Agent Karen Winningham, the forensic analyst, found other
DNA on the hat, but did not try to match that DNA to other
individuals. The DNA analysis could not determine who last
wore the hat.
The government introduced additional evidence about the
area around the Subway. Mr. Moore testified that there is gen-
erally traffic at the Food Lion located in the same plaza until
it closes at 11:00 PM. The police conducted a search of the
area using canine trackers that sniffed the Yankees hat. The
first canine tracker followed the trail to a nearby condo devel-
opment. The second canine tracker led the police to a Mara-
thon gas station less than half a mile away. Almost five hours
after the search was completed, a phone call was placed at the
Marathon gas station to the home of Ms. Edmonds.
II.
Rule 29 provides that at the close of the government’s evi-
dence, "the court on the defendant’s motion must enter a judg-
ment of acquittal of any offense for which the evidence is
insufficient to sustain a conviction." When the court reserves
decision on a Rule 29 motion, as it did in this case, "it must
decide the motion on the basis of the evidence at the time the
ruling was reserved." Fed. R. Crim. P. 29(b).
We review a judgment of acquittal de novo. United States
v. Singh, 518 F.3d 236, 246 (4th Cir. 2008) (citation omitted).
Further, "we view the evidence in the light most favorable to
the prosecution, and inquire whether a rational trier of fact
could have found the essential elements of the charged
offense beyond a reasonable doubt." Id. Therefore, "[a] defen-
dant challenging the sufficiency of the evidence faces a heavy
burden." United States v. Foster, 507 F.3d 233, 245 (4th Cir.
2007) (citation omitted), cert. denied, 552 U.S. 1274 (2008).
6 UNITED STATES v. BONNER
We consider both circumstantial as well as direct evidence,
and a conviction may rely entirely on circumstantial evidence.
United States v. Harvey, 532 F.3d 326, 333 (4th Cir. 2008).
The court must be satisfied that there is "evidence that a rea-
sonable finder of fact could accept as adequate and sufficient
to support a conclusion of a defendant’s guilt beyond a rea-
sonable doubt." United States v. Burgos, 94 F.3d 849, 862
(4th Cir. 1996) (en banc). In assessing the evidence, the jury’s
resolution of all evidentiary conflicts and credibility determi-
nations must be given deference. United States v. Beidler, 110
F.3d 1064, 1067 (4th Cir. 1997).
Bonner was charged with two criminal counts. In order to
prove Count I, interference with commerce through robbery,
the government must prove the following beyond a reasonable
doubt: (1) on October 29, 2008, Bonner knowingly obtained
property consisting of money belonging to the Subway restau-
rant at 12201 Highway 150 North, Winston-Salem, North
Carolina, from the possession of an employee of that busi-
ness; (2) Bonner took this property against the victim’s will,
by actual or threatened force; and (3) as a result of Bonner’s
actions, interstate commerce was affected in any way or
degree. See 18 U.S.C. § 1951(a).3 In order to prove Count II,
carrying a firearm during and in relation to a crime of vio-
lence, the government must prove the following elements
beyond a reasonable doubt: (1) Bonner knowingly used or
carried a firearm; and (2) Bonner did so during and in relation
to a crime of violence for which he may be prosecuted in a
court of the United States. See 18 U.S.C. § 924(c)(1)(A)(ii).
III.
The district court determined that the evidence against Bon-
ner was not sufficient for a reasonable trier of fact to conclude
that he was guilty beyond a reasonable doubt. In its opinion,
3
It is undisputed that the government made an adequate showing that
the robbery impacted interstate commerce.
UNITED STATES v. BONNER 7
the court relied on several missing, flawed, or contradictory
facts which were presented by the government to conclude
that the evidence against Bonner was insufficient. First, the
court noted that neither store employee identified Bonner
using "any facial characteristics, height or other distinguish-
ing feature." United States v. Bonner, 735 F. Supp. 2d 405,
408 (M.D.N.C. 2010). Second, the court noted that the foren-
sic evidence was not sufficient to conclude that Bonner was
the last person to wear the hat and that any inferences by the
jury to that effect were improper. Third, the court pointed out
that the content of the cell phone calls was not in the record
and could have been innocuous. Additionally, the court dis-
counted the importance of the calls placed from the Marathon
gas station because the calls occurred several hours after the
canine had tracked the scent to the phone.
IV.
We rely on two main arguments to conclude that there was
insufficient evidence to convict Bonner.
First, there is a conspicuous absence of any contemporane-
ous "identity" evidence linking the defendant to the robbery.
The government’s entire case consists of four pieces of cir-
cumstantial evidence: (1) a hat with multiple DNA matches
worn by Bonner was also worn by one of the robbers; (2)
Bonner’s wallet, discovered in the alleged getaway car; (3)
phone records showing calls from Bonner’s cell phone to Ms.
Edmonds and Mr. Ruth the night after the robbery; and (4) a
separate phone record showing a call from a nearby gas sta-
tion to Ms. Edmonds. While it is possible to convict a defen-
dant solely on circumstantial evidence, in cases where the
identity of the perpetrator is in dispute, usually there is some
specific "identity" evidence or uncontroverted physical evi-
dence that links the defendant to the scene of the crime. See,
e.g., United States v. Warren, 593 F.3d 540, 547 (7th Cir.
2010) (defendant was found in possession of stolen money);
United States v. Kittrell, No. 06-5265, 269 F. App’x. 338, 342
8 UNITED STATES v. BONNER
(4th Cir. March 17, 2008) (evidence included fingerprints, an
in-court identification, and handwriting expert when DNA
evidence was inconclusive); Foster, 507 F.3d at 245 (evi-
dence of identity included evidence of past attempts to kill
victim, letters instructing defendant to kill victim, and a taped
conversation in which defendant was confronted about mur-
dering victim and did not deny it); c.f. United States v. Hin-
ton, No. 08-6787, 366 F. App’x 481, 484 (4th Cir. Feb. 24
2010) (relying on eyewitness evidence to show that there was
sufficient evidence to implicate defendant). Here, only very
flimsy facts tie Bonner to the robbery. Notably we lack any
physical description of the robbers from the victims.
Strikingly, despite claims otherwise, no credible physical
evidence indicates that Bonner was wearing the Yankees hat
on the night of the robbery. The government disagrees and
argues that because Bonner’s DNA was "predominant," it was
reasonable for the jury to infer that he was wearing the hat on
the night of the robbery. However, the DNA expert testified
that he could not conclude who last wore the hat based on the
DNA despite the government’s emphasis on the word "pre-
dominant." J.A. 320. Any assumption that Bonner was the last
wearer is an impermissible inference by the jury.
The government also argues that the dog picked up the
scent of Bonner’s "predominant" DNA and tracked it to the
Marathon gas station where calls were later placed to Bon-
ner’s girlfriend. It argues that it is logical to assume that the
dog followed the strongest DNA match, but neither the gov-
ernment nor its experts provided the Court with any scientific
basis to support that proposition. To the contrary, the only
evidence presented at trial is that the dog would track the
scent of the last person to wear the hat. At oral argument, the
government suggested that because the facts are viewed in the
light most favorable to the government, asking the jury to
make a leap from "predominant" DNA to last wearer of the
hat was reasonable. However, this confuses the permissible
practice of viewing conflicting evidence and credibility in
UNITED STATES v. BONNER 9
favor of one side, with the impermissible practice of allowing
juries to invent new evidence based on unsubstantiated scien-
tific assumptions.
We find the government’s reliance on these unsupported
conclusions troubling for several reasons. First, using the rea-
soning of the government, that is to draw unscientific conclu-
sions based on two disparate pieces of scientific evidence,
many seemingly logical conclusions can be drawn. For
instance, perhaps the robbers’ DNA was not on the hat at all
since the robber was wearing nylon over his head during the
robbery. Perhaps Bonner perspires more than the others and
therefore, his DNA was "predominant." Indeed, a jury could
draw a number of apparently plausible, but analytically flimsy
conclusions that border on pseudo-science from the expert
evidence presented by the government. However, not every
articulable inference is proper because scientific rigor
demands more than a theory of plausible deductions strung
together.
More fundamentally, the government’s scientific theory as
to identity lacks any evidentiary support in the record. Indeed,
it is axiomatic that a party must lay a sufficient foundation
before a jury is entitled to credit the opinion of an expert wit-
ness. For example, in United States v. Johnson, we held that
a police officer who interprets the colloquial language in a
phone conversation based on his experience with drug traf-
fickers must be proffered as an expert. 617 F.3d 286, 294 (4th
Cir. 2010). We focused on the fact that only experts with
"specialized knowledge" can deliver testimony requiring spe-
cialized "knowledge, skill, experience, training and educa-
tion." Id. Similarly, in this case, the government asked the
jury to draw unwarranted inferences based on two uncon-
nected pieces of scientific evidence through argument instead
of specialized knowledge.
Finally, as the gatekeepers of expert testimony, courts must
be careful to avoid the potential pitfalls of junk science. The
10 UNITED STATES v. BONNER
Supreme Court has repeatedly recognized that forensic sci-
ence is an imperfect and human endeavor, and that the Sixth
Amendment’s "Confrontation [Clause] is one means of assur-
ing accurate forensic analysis." Melendez-Diaz v. Massachu-
setts, ___ U.S. ___, 129 S. Ct. 2527, 2536-2537 (2009) (also
discussing cases of fraud, error, and "drylabbing," where
forensic analysts report results of tests that were never per-
formed). Recently, the Supreme Court explicitly rejected the
idea that forensic testing of blood, via gas chromatograph, is
"simple or certain." Bullcoming v. New Mexico, 564 U.S. ___,
180 L. Ed. 2d 610, 617 (2011). Instead, the Court noted that
conducting such tests "requires specialized knowledge and
training. Several steps are involved in the gas chromatograph
process, and human error can occur at each step." Id.
More broadly, the Supreme Court has noted the "wide vari-
ability across forensic science disciplines with regard to tech-
niques, methodologies, reliability, types and numbers of
potential errors, research, general acceptability, and published
material." Melendez-Diaz, 129 S. Ct. at 2537 (citations omit-
ted). Melendez-Diaz also highlighted the conclusions of a
National Academy Report that "[t]he forensic science system,
encompassing both research and practice, has serious prob-
lems that can only be addressed by a national commitment to
overhaul the current structure that supports the forensic sci-
ence community in this country." 129 S. Ct. at 2537 (citations
omitted). We must thus be particularly vigilant when the gov-
ernment, as in this case, asks us to rely on scientific evidence
as the primary basis for upholding a conviction. Our commit-
ment to scrutinizing such evidence counsels against crediting
the government’s assertions that the DNA evidence in this
case supported a guilty verdict against Bonner.
For the foregoing reasons, we find that the district court
correctly concluded that no reasonable trier of fact could con-
clude that Bonner was guilty beyond a reasonable doubt.
Therefore, we affirm the district court’s conclusion that there
was insufficient evidence to convict Bonner in this matter.
AFFIRMED