United States v. Thomas

NOT RECOMMENDED FOR FULL TEXT PUBLICATION
File Name: 07a0307n.06
Filed: May 4, 2007

No. 05-6246

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
) EASTERN DISTRICT OF TENNESSEE
JONATHAN MARK THOMAS, )
)
Defendant-Appellant. )
)
)
_____________________________________ )

BEFORE: ROGERS, GRIFFIN, Circuit Judges; and RUSSELL, District Judge*

RUSSELL, District Judge. Defendant-Appellant Jonathan Mark Thomas appeals his

sentence and conviction for unarmed bank robbery, in violation of 18 U.S.C. § 2113(a), challenging

the district court’s decision that: 1) an obstruction of justice enhancement was proper; 2) certain

evidence was admissible; 3) there was sufficient evidence to convict Thomas of unarmed robbery;

and 4) certain expert testimony was admissible.

BACKGROUND

On November 4, 2003, Valerie Carter was working behind the teller counter at the

*
The Honorable Thomas B. Russell, United States District Judge for the W estern District of Kentucky,
sitting by designation.
Chattanooga Area Schools Credit Union in Chattanooga, Tennessee.1 At about 10:00 a.m., a man

walked up to the counter and told Carter, “Give me all your money, and don’t move.” Carter

described the person as a black male, approximately six feet tall, of slim build, with an unkempt

appearance and distinctive eyes and hair, and testified that he spoke in muffled tones “as if he had

cotton in his mouth.” Carter maintained eye contact, telling the man that she would have to move

to get the money. The man instructed Carter to “hurry up.” After Carter opened the money drawer,

the man handed her a blue sack into which she placed approximately $487. The man then snatched

the sack and left the credit union.

The credit union had surveillance video cameras. The camera recorded a black and white

image of the man’s face as well as his clothing. The man was wearing a horizontally striped shirt.

Several days after the robbery, Carter was shown a photo lineup. Carter identified Thomas

in one of the photographs as the robber. Carter also identified Thomas in the courtroom as the man

who robbed the credit union on November 4, 2003.

Officer Matthew Hennessee, employed with the Chattanooga Police Department and

assigned to the FBI Safe Streets Task Force, responded to the credit union shortly after the robbery.

Officer Hennessee watched the surveillance video and recognized the robber depicted on the

videotape to be Thomas, with whom he was familiar. Officer Hennessee testified that he had

previously observed or had contact with Thomas on ten different occasions.

Officer Hennessee advised FBI Special Agent Jim Melia, coordinator for the Safe Streets

Task Force, that he had identified Thomas as the person who had robbed the credit union. On

November 5, 2003, Agent Melia participated in the execution of a search warrant at Thomas’

residence. The search uncovered nothing related to the robbery of the credit union. Agent Melia

1
The Chattanooga Area Schools Credit Union is a federally insured institution.
testified that this was not surprising, explaining that “most of the bank robbers I have come across

dispose of their outer clothing almost immediately, the first chance they get, after a bank robbery

happens.”

On November 6, 2003, Agent Melia interviewed Thomas at the Chattanooga FBI office.

Thomas was read his Miranda warnings and signed a waiver of rights form. Thomas denied having

anything to do with the robbery.

During the interview, Thomas was shown a black and white digital photograph taken of the

robber from the surveillance video at the credit union. Thomas stated “that it looked just like him

but that it wasn’t him,” and added, “I’ve got a shirt like that, but it’s blue and maroon; it’s not

green.” Pursuant to their investigation, law enforcement knew that the shirt that the robber was

wearing had blue and green stripes; however, the photograph that Thomas was shown was in black

and white.

Agent Melia questioned Thomas about his whereabouts during the hours preceding the

robbery. Thomas offered six different alibis in the course of his interview. The FBI task force

followed up on these potential alibis but was unable to corroborate any of them.

After investigating Thomas’ alibis, Agent Melia visited him at the jail, advising Thomas that

the agents had been unable to confirm any of Thomas’ alibis. Thomas stated that this was due to

the fact that at the time of the robbery he was at his mother’s residence with a woman named Pat

Broom. Agent Melia told Thomas that Broom had already been interviewed and had denied that she

was with Thomas the morning of the robbery. Thomas responded, “I’ll whip her.” Thomas

indicated that he had sent Broom a letter, had telephoned her, and had enclosed a surveillance photo

of the robbery.

After the United States rested its case, Thomas called one witness, his brother Joseph
Thomas. Joseph Thomas indicated that on the day of the robbery he was in Chattanooga on military

leave, staying at his mother’s home. Joseph Thomas testified that he was with Thomas at their

mother’s house the morning of the robbery and that Thomas was in his bedroom with Pat Broom

around the time the robbery occurred.

On cross-examination, Joseph Thomas conceded that after hearing that Thomas had been

charged with the robbery of the credit union, he did not contact any law enforcement authorities to

advise them that he could vouch for Thomas’ whereabouts around the time that the robbery

occurred. The United States produced a copy of Joseph Thomas’ military leave form for October

27 through November 6 of 2003, on which he listed his leave address as Arizona.

In rebuttal, the United States called Mickey Milita, the director of guest relations at Erlanger

Medical Center. Milita, who was familiar with Thomas, testified that he saw Thomas around 8:30

a.m. on November 4, 2003, at the hospital asking for money. Milita testified that Thomas was

wearing a golf shirt that was fairly dirty, bluish-green in color, with horizontal stripes.

On March 29, 2005, the jury returned a verdict of guilty as to the one count charged,

unarmed bank robbery in violation of 18 U.S.C. § 2113(a). A presentence investigation report was

prepared.

The probation officer calculated Thomas’ advisory Guideline range by finding that Thomas

had a base offense level of 20 pursuant to U.S.S.G. § 2B3.1, which was increased by two levels

because Thomas robbed a financial institution. In the description of the offense conduct, the

probation officer stated that “After [Thomas] was arrested, Mr. Thomas called a friend from jail in

an effort to get her to tell the FBI agent that he was with her; however she refused.” The probation

officer also noted in paragraph nine of the report, “During the trial Mr. Thomas’ brother, Joseph

Thomas, an active duty Air Force member, testified that Jonathan Thomas was with him during the
robbery.” In the calculation of the offense level, the probation officer increased Thomas’ level by

two based on obstruction of justice, stating in support, “See paragraph 9.”

Thomas objected to the two-level increase for obstruction of justice based on his brother’s

testimony. In response, the probation officer stated as follows:

After the arrest, the defendant attempted to suborn perjury from a friend to establish
an alibi during the time of the robbery. Mr. Thomas called her from jail to try and
have her testify that they were together during the instant offense. She denied this
request. However pursuant to §3C1.1, Application Note 4, if the defendant commits,
suborns, or attempts to suborn perjury the two-level upward adjustment applies.

The probation officer also stated the enhancement applied based on Thomas’ presentation of his

brother’s false testimony, noting that Joseph Thomas’ Air Force leave request form stated he would

be spending his leave in another state. The probation officer concluded that the two-level

enhancement for obstruction was correctly calculated. The probation officer noted that the

government should be prepared to submit evidence at the sentencing hearing on the issue.

At the sentencing hearing on July 29, 2005, the district court took up Thomas’ objection to

the obstruction of justice enhancement. Thomas’ counsel advised the court that Joseph Thomas had

told counsel that he was with Thomas on the morning of the robbery at their mother’s residence and

that counsel accordingly subpoenaed Joseph Thomas to testify. Counsel stated that Thomas did not

have any involvement in the presentation of that testimony and did not thereby obstruct or attempt

to obstruct justice.

The district court sua sponte turned from the issue of obstruction based on Joseph Thomas’

testimony to the information about Thomas’ pre-trial telephone call from the jail to a potential

witness. The court noted this testimony was not presented at trial. In response, Thomas stated there

was no evidence in the record in reference to Thomas’ attempt to have Broom testify falsely or

testify in relation to an alibi. Thomas objected to the district court’s use of this information as a
basis for finding Thomas obstructed justice.

Agent Melia testified during the sentencing hearing that Thomas had told him that he was

with Broom on the day of the robbery. Agents had interviewed Broom and she had denied that she

was with Thomas on that day. When Agent Melia informed Thomas of Broom’s denial, he

responded with something to the effect of, “I’ll get that bitch.” Agent Melia had listened to a tape-

recording of a telephone call Thomas placed from the jail to Broom in which he advised Broom to

tell the FBI that she was with him on the day of the robbery if the FBI interviewed her. In response,

Broom was heard on the tape telling Thomas, “I wasn’t with you that day.”

Based on this testimony, the district court found that the obstruction of justice enhancement

would not be applied as a result of the trial testimony of Thomas’ brother, but that it did apply as

a result of Thomas’ attempt to have Broom testify falsely on his behalf.

The district court found that the total offense level was 24, Thomas’ undisputed criminal

category was IV, and the Guideline range was 77 to 96 months. The district court stated that the

Guideline range was advisory and not binding on the court, that the court nevertheless would consult

the Guidelines as well as the sentencing goals set forth in 18 U.S.C. § 3553(a), and would select an

appropriate sentence. The parties were invited to address the appropriate sentence in the case. The

court sentenced Thomas to 86 months.

ANALYSIS

I. OBSTRUCTION OF JUSTICE ENHANCEMENT

Thomas argues that the district court erred in determining that the obstruction of justice

enhancement was proper, as the defense was not forewarned about the use of the evidence relied

upon by the court and the evidence itself was not reliable.

After United States v. Booker, this Court reviews a defendant’s sentence to determine if it
is unreasonable. 543 U.S. 220, 261 (2005).

A district court may enhance a defendant’s base offense level by two levels if the “defendant

willfully obstructed or impeded or attempted to obstruct or impede, the administration of justice with

respect to the investigation, prosecution, or sentencing of the instant offense of conviction,” by

conduct relating to the offense of conviction. U.S.S.G. § 3C1.1 (2004). Obstruction of justice

occurs where the defendant threatens, intimidates, or otherwise unlawfully attempts to influence a

witness. Id., cmt. n.4.

A. Notice

Thomas argues that the district court violated his due process rights by relying on a different

theory for the obstruction of justice enhancement than that set forth in the presentence investigation

report.

In United States v. Tiller, an unpublished opinion, this court held that the district court did

not err in enhancing a defendant’s sentence for obstruction of justice despite the fact the probation

officer did not include the enhancement in the calculation of the offense level in the presentence

report. No. 99-3851, 99-3982, 2000 U.S. App. LEXIS 33961 at *15 (6th Cir. 2000). At trial, two

former employees of defendant testified that the defendant told them that, if interviewed by the FBI,

they should refuse to answer and refer the agents to the defendant or his lawyer or indicate they

lacked knowledge of the offense conduct. Id. at *10-11. In the presentence report, the probation

officer stated “that she believed that the defendant may have attempted to obstruct or impede the

administration of justice, but concluded that the trial testimony did not substantiate the obstruction.”

Id. at *10. The district court disagreed and at the sentencing hearing stated that it had “determined

that the defendant was guilty of obstruction of justice in counseling others who would be witnesses

in the criminal case to tell other than the full truth and not to cooperate.” Id.
 On appeal, the defendant, relying on Burns v. United States, 501 U.S. 129 (1991), argued that

the district court erred in failing to provide him notice that the court was contemplating an

enhancement and therefore the case should be remanded for resentencing. Id. at *13. The Court

rejected the defendant’s argument, finding that while Burns held that the district court must give

parties reasonable notice before it departs upward from the Sentencing Guidelines on a ground not

identified in the presentence report, the issue at hand was not an upward departure from the

Sentencing Guidelines, rather it was an application of a sentencing enhancement not recommended

by the probation officer in the presentence report. Id. In United States v. Guthrie, the Court held

that the Burns notice requirement did not extend to require notice when the district court plans to

apply the Guidelines in a manner different from what is recommended in the presentence report.

144 F.3d 1006, 1012 (6th Cir. 1998). Applying this holding, the Tiller Court held that the district

court did not err in failing to provide the defendant with notice of its intention to apply an

enhancement pursuant to U.S.S.G. § 3C1.1. Tiller, 2000 U.S. App. LEXIS 33961, at *14. The

Court went on to note that the defendant should have been aware that the district court might

consider an enhancement based upon obstruction of justice since the probation officer noted in her

report that she believed that the defendant attempted to obstruct or impede the administration of

justice. Id. at *14-15. Although Tiller is an unpublished opinion and therefore not binding on our

panel, United States v. Sanford, 476 F.3d 391, 396 (6th Cir. 2007), we agree with its rationale.

Thus, the district court was not required to give Thomas notice prior to applying the

sentencing enhancement for obstruction of justice. See Guthrie, 144 F.3d at 1012. Furthermore, like

the defendant in Tiller, Thomas should have been aware that the district court would consider an

enhancement for obstruction of justice as the facts relating to Thomas’ telephone call to Broom were

contained in the presentence report and were also relied upon in the probation officer’s addendum
to the presentence report.

B. Application of the Enhancement

Thomas argues that the evidence was not reliable enough to support an enhancement as

Agent Melia indicated that by the time of the sentencing hearing he could not recall in detail the

conversation between Thomas and Broom on the tape-recording.

Thomas objected to the district court’s application of the enhancement, a decision that will

be reviewed for clear error. United States v. Jackson-Randolph, 282 F.3d 369, 389-90 (6th Cir.

2002). The Court has held that testimonial hearsay is admissible at sentencing if it bears some

minimum indicia of reliability. United States v. Katzopoulos, 437 F.3d 569, 574-75 (6th Cir. 2006).

Although Agent Melia was unable to recall in detail what he heard Thomas and Broom say

on the tape-recording, he did recall that Thomas had placed a call from jail to Broom advising her

to tell the FBI that she was with him on the day of the robbery if the FBI interviewed her, and that

Broom refused to do so. Additionally, at trial, Agent Melia testified that Thomas told him that he

was with Broom the day of the robbery, and when Agent Melia told Thomas that Broom denied

being with him, Thomas stated, “I’ll whip her.”

The district court did not commit clear error in finding that Thomas obstructed justice as

there was reliable evidence that Thomas unlawfully attempted to influence Broom. See U.S.S.G.

§ 3C1.1, cmt. n.4.

II. EVIDENTIARY ISSUES

Thomas argues that three pieces of evidence of other bad acts were erroneously admitted in

violation of FED . R. EVID . 404(b). Thomas did not contemporaneously object to the admission of

any of this evidence. Thomas contends that the district court erred in admitting 1) testimony by

Officer Hennessee that he had previously had contact with Thomas on approximately ten different
occasions; 2) photographs taken of Thomas; and 3) Agent Melia’s testimony that Thomas threatened

to harm Broom when Agent Melia advised Thomas that Broom told agents she was not with Thomas

on the morning of the robbery.

Where a party fails to object to the admission of evidence in the district court, this Court will

review the district court’s decision for plain error. United States v. Cowart, 90 F.3d 154, 157 (6th

Cir. 1996). “[T]he plain error doctrine is to be used sparingly, only in exceptional circumstances,

and solely to avoid a miscarriage of justice. Recourse may be had to the doctrine only on appeal

from a trial infected with error so ‘plain’ the trial judge and prosecutor were derelict in

countenancing it.” United States v. Cox, 957 F.2d 264, 267 (6th Cir. 1992) (internal quotation

omitted). A plain error not brought to the district court’s attention, may be considered only if it

affects the defendant’s substantial rights. FED . R. CRIM . P. 52.

FED . R. EVID . 404(b) provides that although evidence of other crimes, wrongs, or acts is not

admissible to prove a person’s character or propensity to engage in criminal conduct, it may be

admissible as “proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or

absence of mistake or accident.” This Court has established a three-step process for determining

the admissibility of evidence under FED . R. EVID . 404(b) when an objection is made. First, the

district court must decide whether there is sufficient evidence that the other act in question actually

occurred; second, the district court must decide whether the evidence is probative of a material issue

other than character; third, the district court must decide whether the probative value of the evidence

is substantially outweighed by its potential prejudicial effect.2 United States v. Jenkins, 345 F.3d

928, 937 (6th Cir. 2003).

2
Additionally, if requested the district court must “clearly, simply, and correctly instruct the jury as to the
specific purpose for which it may consider the evidence.” United States v. Fraser, 448 F.3d 833, 839 (6th Cir.
2006). Neither party made such a request in the case at hand.
A. Officer Hennesse’s Prior Contacts with Thomas

Officer Hennessee testified that after viewing the credit union surveillance video he

recognized the robber depicted on the videotape to be Thomas. Officer Hennessee testified that he

had ten encounters with Thomas between August and November of 2003. Thomas argues that the

district court erred in admitting this testimony because it allowed the jury to infer that Thomas was

someone who was in frequent trouble with the law. The government argues that this testimony is

not evidence of prior bad acts, rather it is admissible background evidence.

Background or res gestae evidence consists of “those other acts that are inextricably

intertwined with the charged offense or those acts, the telling of which is necessary to complete the

story of the charged offense.” United States v. Hardy, 228 F.3d 745, 748 (6th Cir. 2000). Such

evidence does not implicate FED . R. EVID . 404(b). Id. “Proper background evidence has a causal,

temporal or spatial connection with the charged offense.” Id. “Typically, such evidence is a prelude

to the charged offense, is directly probative of the charged offense, arises from the same events as

the charged offense, forms an integral part of a witness’s testimony, or completes the story of the

charged offense.” Id.

Here, the challenged testimony explained how Officer Hennessee recognized Thomas when

he saw the surveillance video. Officer Hennessee did not state that his familiarity with Thomas

arose from criminal activity, only that he had observed Thomas several times and was familiar

enough with Thomas to identify him on the surveillance tape. This testimony was necessary to

explain why law enforcement focused their investigation on Thomas. Such testimony was proper

background evidence, completing the story of the charged offense, and, therefore, does not implicate

FED . R. EVID . 404(b). See Hardy, 228 F.3d at 748.

B. Photographs
 During Officer Hennessee’s testimony, the district court admitted ten photographs of Thomas

ranging over a span of seven years. Thomas argues that these photographs were impermissible

arrest photos, presumably taken from Officer Hennessee’s encounters with Thomas, and were

inadmissible under FED . R. EVID . 404(b) as evidence of other bad acts. The government argues that

the district court did not plainly err in admitting these photographs as they were highly probative

for the purpose of determining whether Thomas was the person depicted in the surveillance video.3

These photographs were probative of the robber’s identity, a central issue of fact for the jury

to determine. The jury was never told under what circumstances the photographs were taken.

Where photographs of a defendant are admitted for a permissible purpose and do not reveal that they

were taken in connection with the defendant’s prior arrest, the mere fact that they were mug shots

does not undermine the propriety of their admission. See United States v. George, 160 Fed. Appx.

450, 454 (6th Cir. 2005) (finding no error where district court admitted mug shot in photo array on

issue of identity where photograph did not suggest that defendant had previously been in jail); see

also United States v. Cannon, 903 F.2d 849, 855-56 (1st Cir. 1990) (finding photographic array

including picture of defendant admissible on issue of identity where jury would not presume picture

was mug shot or defendant had prior criminal record). As the photographs of Thomas did not

indicate that they were mug shots or that Thomas had previously been in jail, their probative value

was not substantially outweighed by their prejudicial effect. See id. Therefore, the district court’s

admission of this evidence was not plain error affecting Thomas’ substantial rights.

C. Thomas’ Statement About Broom

At trial, Agent Melia testified that when he told Thomas that Broom denied being with him,

Thomas responded, “I’ll whip her.” Thomas argues that this testimony was inadmissible under FED .

3
The photographs, which bear no law enforcement markings, depict a head and shoulders likeness of
Thomas wearing civilian clothing.
R. EVID . 404(b) as there was no other reason to put the comment before the jury other than to portray

Thomas in a bad light and as an abuser of women. The government argues that this is background

evidence that is probative of the charged offense.

Here, Agent Melia’s testimony was probative of Thomas’ guilt as it was inconsistent with

Joseph Thomas’ testimony that Thomas was with Broom at the time of the robbery. Nor did the

prejudicial effect of the testimony outweigh its probative value. No evidence was submitted as to

any violence between Thomas and Broom, nor was there any evidence presented at trial that Thomas

was an abuser of women. Therefore, the district court’s admission of this evidence was not plain

error affecting Thomas’ substantial rights.

III. SUFFICIENT EVIDENCE

Thomas argues that his conviction should be reversed for lack of sufficient evidence as there

was no evidence presented to show that Thomas used the threat of force or otherwise intimidated

anyone at the credit union.

“When a conviction is attacked for insufficiency of the evidence, the evidence is viewed in

the light most favorable to the prosecution to determine whether any rational trier of fact could have

found each essential element of the offense beyond a reasonable doubt.” United States v. Barnett,

398 F.3d 516, 521-22 (6th Cir. 2005). This Court will reverse a judgment for insufficiency of the

evidence “only if the judgment is not supported by substantial and competent evidence upon the

record as a whole.” Id. at 522 (quoting United States v. Stone, 748 F.2d 361, 363 (6th Cir. 1984)).

“To sustain a conviction under 18 U.S.C. § 2113(a), the jury was required to find that

[Thomas] intentionally took money from another person, that the money was then in possession of

a federally insured bank or credit union, and that [Thomas] took the money by force, violence, or

intimidation.” United States v. Sullivan, 431 F.3d 976, 982 (6th Cir. 2005). In the context of section
2113(a), intimidation is defined as “an act by a defendant reasonably calculated to put another in

fear, or conduct and words calculated to create the impression that any resistance or defiance by the

individual would be met by force.” United States v. Waldon, 206 F.3d 597, 606 (6th Cir. 2000)

(quotations omitted). “Whether intimidation under 18 U.S.C. § 2113(a) exists in a particular case

is determined by an objective test: whether an ordinary person in the teller’s position could

reasonably infer a threat of bodily harm from the defendant’s acts.” United States v. Gilmore, 282

F.3d 398, 402 (6th Cir. 2002).

In United States v. Gilmore, there was no evidence that the defendant carried a firearm in any

of the bank robberies for which he was convicted. Id. In upholding defendant’s conviction against

a sufficiency of the evidence challenge, the court stated that “the display of a weapon, a threat to use

a weapon, or even a verbal or nonverbal hint of a weapon is not a necessary ingredient of

intimidation under § 2113(a).” Id. The court found that written or verbal “[d]emands for money

presented to a teller amount to intimidation because they carry with them an implicit threat: if the

money is not produced, harm to the teller or other bank employee may result.” Id.

In the present case, Thomas approached the counter where Carter was working as a teller and

told her, “Give me all your money, and don’t move.” After instructing Carter to “hurry up,” Thomas

shoved a blue sack at her in which to place the money. At trial, Carter testified that she was afraid

that she was “going to be either shot or hurt.” Taking the evidence in the light most favorable to the

government, the proof of intimidation was sufficient to convict Thomas of bank robbery under 18

U.S.C. § 2113(a) beyond a reasonable doubt. See United States v. Robinson, 527 F.2d 1170, 1172

(6th Cir. 1975) (“An ‘ordinary person’ in the teller’s position could reasonably, we think, infer an

implicit threat in the demand, ‘Give me all your money,’ accompanied by the presentation of a

‘black pouch’.”); Gilmore, 282 F.3d at 403 (“Evidence that the teller felt threatened is probative of
whether a reasonable person would have been afraid under the same circumstances.”).

IV. EXPERT TESTIMONY

Thomas argues that the district court erred by allowing Agent Melia to testify that he was

not surprised by the lack of evidence found in Thomas’ residence during the execution of the search

warrant, “[b]ecause most of the bank robbers I have come across dispose of their outer clothing

almost immediately, the first chance they get, after a bank robbery happens.” Thomas argues that

this was expert testimony for which the government provided no basis and, therefore, the district

court erred in allowing its admission. Thomas did not raise this issue in the district court; therefore,

this Court will review the district court’s decision for plain error.

Pursuant to FED . R. EVID . 702, a witness qualified as an expert by knowledge, skill,

experience, training, or education may testify in the form of an opinion if “(1) the testimony is based

upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and

(3) the witness has applied the principles and methods reliably to the facts of the case.” If a witness

is not testifying as an expert, that witness’ testimony in the form of opinions or inferences is limited

to those which are “(a) rationally based on the perception of the witness, and (b) helpful to a clear

understanding of the witness’ testimony or the determination of a fact in issue, and (c) not based on

scientific, technical, or other specialized knowledge within the scope of Rule 702.” FED . R. EVID .

701. As Agent Melia’s testimony that he was not surprised by the lack of evidence found in

Thomas’ residence during the search was based on specialized knowledge, his testimony would be

admissible only if he were qualified as an expert pursuant to FED . R. EVID . 702.

In Daubert v. Merrell Dow Pharmaceuticals, Inc., the Supreme Court held that evidence

proffered by an expert must be relevant to the task at hand and must have a reliable foundation. 509
U.S. 579, 597 (1993). The Supreme Court subsequently held in Kumho Tire Co. v. Carmichael that

Daubert’s principles apply to all expert testimony admissible under FED . R. EVID . 702. 526 U.S.

137, 148 (1999). “In essence, Daubert and its progeny have placed the district courts in the role of

‘gatekeeper,’ charging them with evaluating the relevance and reliability of proffered expert

testimony with heightened care.” Surles v. Greyhound Lines, Inc., 474 F.3d 288, 294 (6th Cir.

2007). “Although the trial court is not required to hold an actual hearing to comply with Daubert,

the court is required to make an initial assessment of the relevance and reliability of the expert

testimony.” Greenwell v. Boatwright, 184 F.3d 492, 498 (6th Cir. 1999). Here, the district court

failed to perform its gatekeeping function with regard to the challenged testimony, making no initial

assessment of the relevance and reliability of Agent Melia’s testimony concerning the activity of

bank robbers. It is to be noted that there was no objection to the expert opinion.

Although the district court may have erred in admitting this evidence without performing its

gatekeeping function under Daubert and progeny, Thomas has not shown how this alleged error

affected his substantial rights. Thomas effectively cross-examined Agent Melia on the issue,

impeaching Agent Melia with the apparent inconsistency between his experience and that of the

affiant on the search warrant, also an experienced FBI agent.4

Thomas was identified both in court and through a photo lineup by the teller as the man who

robbed the credit union. Officer Hennessee also identified Thomas, with whom he was familiar,

after watching a surveillance tape of the robbery. When questioned by law enforcement officials

and shown a black and white digital photograph taken of the robber from the surveillance video,

Thomas stated, “I’ve got a shirt like that, but it’s blue and maroon; it’s not green.” The shirt that

4
The affiant on the search warrant stated, “It has been my experience, as well as the collective experience of
other agents of the Chattanooga, Tennessee, resident agency of FBI, that bank robbers frequently conceal proceeds,
instrumentalities, and contraband from their robberies in and around their residence following the robberies.”
the robber had been wearing had blue and green stripes. There was also testimony by Milita that

he observed Thomas on the morning of the robbery wearing a bluish-green shirt with horizontal

stripes. This evidence was sufficient by itself to allow a rational trier of fact to find beyond a

reasonable doubt that Thomas was the man who committed the robbery. See Barnett, 398 F.3d at

521-22. Therefore, the district court did not commit plain error affecting Thomas’ substantial rights

in admitting the challenged testimony of Agent Melia.

CONCLUSION

Having had the benefit of oral argument, and having studied the record on appeal and the

briefs of the parties, we are not persuaded that the district court erred in determining that an

obstruction of justice sentencing enhancement was proper, in its rulings on the challenged

evidentiary issues, or in finding there was sufficient evidence to convict Thomas of unarmed bank

robbery. Although the district court may have erred in admitting the challenged testimony of Agent

Melia without performing its gatekeeping function, we find that this error did not affect Thomas’

substantial rights. Accordingly we AFFIRM the judgment of the district court.