United States v. Turner

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 08a0409n.06
Filed: July 9, 2008

No. 07-3095

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA, )
)
ON APPEAL FROM THE
Plaintiff-Appellee, )
UNITED STATES DISTRICT
)
COURT FOR THE SOUTHERN
v. )
DISTRICT OF OHIO
)
DIONNE D. TURNER, )
)
OPINION
Defendant-Appellant. )
_______________________________________)

Before: DAUGHTREY and MOORE, Circuit Judges; DUGGAN,* District Judge.

KAREN NELSON MOORE, Circuit Judge. A jury convicted Defendant-Appellant

Dionne D. Turner (“Turner”) of robbing a bank in Evendale, Ohio, in violation of 18 U.S.C.

§ 2113(a) and (d), and brandishing a firearm while committing a crime of violence, in violation of

18 U.S.C. § 924(c)(1)(A). The district court sentenced Turner to consecutive terms of 224 months

and 84 months of imprisonment respectively. Turner appeals the district court’s denial of his motion

to suppress evidence of a jacket containing a substantial amount of money found in his girlfriend’s

car after the robbery at issue. Also, Turner appeals the denial of his motion to exclude a boot print

found on a bank countertop at the scene of the crime. In addition, Turner appeals three evidentiary

rulings made by the district court during his trial that he contends constitute cumulative error

*
The Honorable Patrick J. Duggan, United States District Judge for the Eastern District of
Michigan, sitting by designation.
warranting a retrial. Finally, Turner appeals the denial of his motion for judgment of acquittal at the

close of the evidence. For the following reasons, we AFFIRM the district court’s judgment.

I. BACKGROUND

A. Factual Background

1. The Robbery

On October 31, 2002, a gunman robbed the Fifth Third Bank located on Saint Rita Lane in

Evendale, Ohio. He entered the bank shortly after it opened, yelling profane statements. He vaulted

the bank tellers’ countertop and demanded currency in fifty and one-hundred dollar denominations.

He grabbed the hair of customer-service representative Michelle Angus (“Angus”), and forced her

to the floor. The robber held a gun to Angus’s head as another customer-service representative,

Maher Kaddoura (“Kaddoura”), put money into a blue bag provided by the robber. Kaddoura

testified that the robber wore “Timberland-kind of shoes, kind of bulky shoes.” Joint Appendix

(“J.A.”) at 363 (Kaddoura Test. at 1-163:8-9). Despite the fact that much of the robber’s face was

covered, two bank employees, Kelly Fisher (“Fisher”) and Kaddoura, testified that the robber had

a tattoo under one eye. After collecting the blue bag filled with money by Kaddoura, the robber went

through a swinging teller door (instead of vaulting the counter again) and exited the building.

Customer-service representative Fisher set off the alarm. Kaddoura wrote down the license-plate

number of the getaway car and noted that an umbrella had been left between the bank’s front doors.

Customer-service representative Sandy Crone (“Crone”) and personal banker Marcia Wood

(“Wood”) were also present during the robbery.

2
 2. The Vehicle Search

On November 8, 2002, Officer Jeffrey Ray (“Ray”), along with other officers, approached

a parked car after Turner had exited the passenger side and entered a building. The record is clear

that this was not a “traffic stop.” J.A. at 254 (Ray Test. at 94:11). The driver of the car was Turner’s

girlfriend at the time, Alyscia Stone-Knight (“Stone-Knight”). Stone-Knight signed a consent form,

and the officers proceeded “to search the vehicle for contraband.” J.A. at 248 (Ray Test. at 88:7).

Ray took notes during the search. The officers recovered two items of note during the search: a

“blue nylon Tommy Hilfiger bag,” J.A. at 249 (Ray Test. at 89:25), in the “back seat” of the vehicle,

J.A. at 250 (90:5), and “a black leather jacket . . . in the rear” of the vehicle. J.A. at 250 (Ray Test.

at 90:9-10). A pocket of the leather jacket contained “a large amount of U.S. currency,” J.A. at 250

(Ray Test. at 90:17), in “large denominations, fifties and one hundreds.” J.A. at 251 (Ray Test. at

91:6-7). Ray testified that he did not ask Stone-Knight to whom the jacket belonged, but he did not

think that it belonged to her because of its size; indeed, Ray believed that the jacket belonged to

Turner. Ray also testified that the search uncovered “some small amount of marijuana.” J.A. at 567

(Ray Test. at 2-197:12-14).

3. The Boot Print

During the course of the robbery, the suspect left a boot print on a piece of glass at a teller

window; officers observed the suspect vaulting the countertop when they examined the bank’s

surveillance photos. Officers removed the glass and sent it to a Federal Bureau of Investigation

(“FBI”) lab for testing. Fingerprint specialist Derrick Weems (“Weems”) testified that the lab

followed a specific protocol for examining evidence. Weems testified that when he saw the boot

print on the glass, he sent it to the “Questioned Documents” department because the process that he

3
would employ to lift fingerprints would likely destroy the boot print. J.A. at 102 (Weems Test. at

58:2-6). Weems testified that once the shoe-print analysis had been completed, the glass was

returned to him and he examined it for fingerprints. Weems testified that his fingerprint examination

destroyed the boot print.

Michael Smith (“Smith”), a forensic examiner with the FBI, conducted tests on the boot print.

He testified that photography was part of the shoe-print analysis, and that one could perform the

analysis by examining the shoe itself and a proper photograph of the print. Smith testified that

forensic photography provides the best quality lift for a shoe print on a piece of glass. When asked

why an electrostatic lift had not been his preferred method of examining the boot print, Smith replied

that, although the electrostatic lift was a method generally accepted by the scientific community, he

chose not to use the electrostatic lift because it could have damaged the fingerprint evidence on the

glass.1 Smith testified that he did not know of a method, aside from the one that he used, to lift the

boot print and still preserve any existing fingerprints. In addition, he testified that if he had known

that fingerprints would not need to be lifted after his examination and if the photograph that he

received from the forensic photographers “was not the quality that [he] wanted” J.A. at 179-80

(Smith Test. at 19:25-20:11), he might have used the electrostatic lift. Smith testified that he was

sure, based on four points of comparison, that the positive identification between the boot submitted

to him and the print on the glass was “one hundred percent accurate.” J.A. at 181 (Smith Test. at

21:19-21). Smith testified that the average number of points of comparison that allowed him to

make a positive match was between four and seven.

1
Defense counsel tried to establish that Smith could not have been sure that fingerprints
existed on the glass. Smith testified that he assumed that there were probably latent prints because
the glass had been sent to him by the Latent Print Unit.

4
 The defense expert, Garry Koverman (“Koverman”), examined both the boot and the forensic

photograph of the glass imprint; he made his own test impression of the boot for purposes of his

analysis. He concluded that Smith’s first three points of comparison were “significant points of

identification.” J.A. at 240-41 (Koverman Test. at 81:23-82:10). When asked if the electrostatic lift

“improves on the quality of what you have to view,” Koverman stated that “[i]t is not a hard-fast

rule, but, generally, I would say yes.” J.A. at 219 (Koverman Test. at 59:9-14). The defense expert

also testified that the photograph of the shoe that was taken “looked okay,” but that he would have

taken more photographs “in the search for more characteristics.” J.A. at 226 (Koverman Test. at

66:1-5). In addition, he testified that it was not a reasonable scientific choice for the government lab

to fail to perform a lift of the boot print. The electrostatic lift “could have increased the detail that

could be seen,” J.A. at 227 (Koverman Test. at 67:21), which would have “increased the chances of

identification and also exclusion.” J.A. at 227-28 (Koverman Test. at 67:25-68:1). Koverman

testified that the failure to conduct an electrostatic lift “could have” affected the reliability of Mr.

Smith’s opinion but that he did not “know that.” J.A. at 228 (Koverman Test. at 68:2-10). Finally,

Koverman testified that he did not think that the four points of comparison were “sufficient to make

an identification.” J.A. at 233 (Koverman Test. at 73:3-7).

B. Procedural Background

A grand jury indicted Turner for robbing a branch of the Fifth Third Bank in Evendale, Ohio,

in violation of 18 U.S.C. § 2113(a) and (d), and for brandishing a firearm while committing a crime

of violence, in violation of 18 U.S.C. § 924(c)(1)(A). Approximately one month before trial, Turner

filed two motions. First, Turner sought to exclude evidence of a boot print found on the glass

countertop at the bank (or, alternatively, to dismiss the indictment). Second, Turner moved to

5
suppress evidence recovered during a search of Smith-Knight’s car and residence. The district court

held a hearing on August 14, 2006, and denied both motions orally. After the close of all of the

evidence, Turner orally moved for a judgment of acquittal under FED . R. CRIM . P. 29; the district

court denied the motion. A jury convicted Turner on both counts. The clerk entered the district

court’s judgment on January 22, 2007, and Turner filed a timely appeal the same day.

II. ANALYSIS

A. Denial of Motion to Suppress

1. Standard of Review

“We review de novo the district court’s legal conclusions in a suppression hearing, and we

review the district court’s findings of fact for clear error.” United States v. Bailey, 302 F.3d 652, 656

(6th Cir. 2002). “‘A factual finding is clearly erroneous when the reviewing court is left with the

definite and firm conviction that a mistake has been made.’” Id. (quoting United States v. Smith, 263

F.3d 571, 581 (6th Cir.2001)). Because the district court denied the motion to suppress, we view the

evidence in the light most favorable to the government. United States v. Blair, 524 F.3d 740, 748

(6th Cir. 2008). In addition, we consider a constitutional error to be “harmless when it appears

beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.”

Mitchell v. Esparza, 540 U.S. 12, 17-18 (2003) (internal quotation marks omitted). As the Supreme

Court held in Kotteakos v. United States, 328 U.S. 750 (1946), “if one cannot say, with fair

assurance, . . . that the judgment was not substantially swayed by the error, it is impossible to

conclude that substantial rights were not affected.” Id. at 765; United States v. Haywood, 280 F.3d

715, 724 (6th Cir. 2002) (quoting Kotteakos, 328 U.S. at 765).

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 2. Motion to Suppress Jacket and Money Found Within It

We first consider the issue of whether the district court erred by denying Turner’s motion to

suppress the jacket, containing fifty and one-hundred dollar bills, that officers found on the backseat

of his girlfriend’s vehicle. We have held that the suppression hearing’s central inquiry involves

determining, on a case-by-case basis, whether the defendant has “‘a legitimate expectation of privacy

in the place searched or the thing seized.’” United States v. Waller, 426 F.3d 838, 843 (6th Cir.

2005) (quoting United States v. King, 227 F.3d 732, 743 (6th Cir. 2000)). We recognize several

exceptions to the warrant requirement, including consent. United States v. Caldwell, 518 F.3d 426,

429 (6th Cir. 2008). When someone other than the defendant consents to a search of the defendant’s

belongings, that third party must have actual common authority1 or apparent authority2 over the

property the officers seek to examine in order to give legal consent. “The government bears the

burden of establishing the effectiveness of a third party’s consent.” Waller, 426 F.3d at 845.

We need not determine today whether the district court should have suppressed the jacket

and its contents found by police on the backseat of Smith-Knight’s car after she gave consent to a

search of her vehicle for (what Officer Ray described as) “contraband.” J.A. at 248 (Ray Test. at

88:7). Even if we agreed with Turner that the district court erred by denying the motion to suppress

1
Common authority “rests . . . on mutual use of the property by persons generally having joint
access or control for most purposes.” United States v. Matlock, 415 U.S. 164, 171 n.7 (1974). Those
who have common authority with respect to a certain object or place “have assumed the risk that one
of their number might permit” a search. Id.
2
Apparent authority becomes relevant when an individual represents to government officials
that he or she has actual common authority, but in reality does not have such authority. Under these
circumstances, we consider the consent given by an individual who claims to have apparent authority
to be valid if “the facts available to the officer at the moment . . . warrant a man of reasonable
caution in the belief that the consenting party had authority over the premises.” Ill. v. Rodriguez, 497
U.S. 177, 188 (1990) (internal quotation marks omitted).

7
the jacket and money (because Smith-Knight did not have actual common or apparent authority to

give consent to a search of the jacket), we hold that such an error would be harmless. One cannot

say that the jury’s findings were “substantially swayed,” Kotteakos, 328 U.S. at 765, by the

admission of the jacket and the money found in one of the jacket’s pockets because these items were

only a small part of the evidence that could have led the jury to find Turner guilty. First, it is

important to note that the money found in the jacket pocket was not the only evidence presented to

the jury indicating that, after the robbery, Turner possessed the same denominations of money—fifty

and one-hundred dollar bills—taken during the robbery. Indeed, Smith-Knight testified that, after

the date of the robbery, Turner gave her fifty and one-hundred dollar bills to use towards the

purchase of a new vehicle. Smith-Knight testified that this was abnormal because Turner rarely had

money and did not have a job during the five months preceding the bank robbery. We note that

defense counsel took the opportunity thoroughly to cross-examine Smith-Knight. In addition, the

jury could have considered evidence indicating that Turner had the same tattoo under one of his eyes

as the robber, had boots that matched the boot print left by the robber on one of the bank’s glass

countertops, and had presented bank employees with a bag to fill with money that Smith-Knight later

identified as the diaper bag that she had given Turner to use when looking after her children.

Viewing the above evidence in a light most favorable to the government, Blair, 524 F.3d at 748, we

hold that, even if we were to conclude that the district court improperly denied the motion to

suppress the jacket and the money found in one of the jacket’s pockets, any such error was harmless

because we can say with fair assurance that the judgment was not swayed by such an error.

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B. Denial of Motion to Exclude Boot-Print Evidence

1. No Denial of Due Process Rights

Turner claims that the district court violated the Due Process Clause by denying his motion

to exclude the evidence of the boot print left by the robber on the bank’s countertop because he was

denied the opportunity to examine the boot print and then demonstrate that the boot print did not

belong to him. “Under the Due Process Clause, the Supreme Court has developed ‘what might

loosely be called the area of constitutionally guaranteed access to evidence.’” United States v.

Jobson, 102 F.3d 214, 218 (6th Cir. 1996) (quoting Cal. v. Trombetta, 467 U.S. 479, 485 (1984)).

In Brady v. Maryland, 373 U.S. 83 (1963), the Supreme Court held that “suppression by the

prosecution of evidence favorable to an accused upon request violates due process where the

evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the

prosecution.” Id. at 87. In order for evidence to be “material,” it “must both possess an exculpatory

value that was apparent before the evidence was destroyed, and be of such a nature that the defendant

would be unable to obtain comparable evidence by other reasonably available means.” Trombetta,

467 U.S. at 488-89. Thus, the Supreme Court established in Trombetta that states have a

constitutional duty “to preserve evidence . . . that might be expected to play a significant role in the

suspect’s defense.” Id. at 488.

Four years after Trombetta, the Supreme Court distinguished material exculpatory evidence

from “potentially useful” exculpatory evidence in Arizona v. Youngblood, 488 U.S. 51, 58 (1988).

Youngblood established that “the government does not have ‘an undifferentiated and absolute duty

to retain and to preserve all material that might be of conceivable evidentiary significance in a

particular prosecution.’” United States v. Wright, 260 F.3d 568, 571 (6th Cir. 2001) (quoting

9
Youngblood, 488 U.S. at 58). “[T]he Due Process Clause requires a different result when we deal

with the failure of the State to preserve evidentiary material of which no more can be said than that

it could have been subjected to tests, the results of which might have exonerated the defendant.”

Youngblood, 488 U.S. at 57. In order for a court to hold that the government violated a defendant’s

due-process rights with regard to potentially useful exculpatory evidence, the defendant must show

that the government acted in “bad faith.” Id. at 58. A showing that the government was negligent,

even grossly negligent, is insufficient to establish bad faith. Wright, 260 F.3d at 571.

We conclude that the boot print is not material exculpatory evidence as defined in Trombetta

because the exculpatory nature of the boot-print evidence was not apparent before its destruction.

Trombetta, 467 U.S. at 488-89. At the district court level, Turner argued that “appropriate testing

may have provided exculpatory evidence.” J.A. at 31 (Mot. to Exclude Hr’g at 7) (emphasis added).

Indeed, none of the testimony elicited from the defense expert, Koverman, indicated that there was

anything about the boot print that would have caused its alleged exculpatory nature to be apparent.

In fact, Koverman testified that his preferred method of analysis would only have brought out more

details that “could have increased the chances of identification and also exclusion.” J.A. at 228

(Koverman Test. at 67:25-68:1). Koverman did not testify that the exculpatory nature of the

evidence should have been apparent to the government, only that more tests “might have exonerated”

Turner. Youngblood, 488 U.S. at 57. Thus, the boot print was not material exculpatory evidence

under Trombetta.

We must analyze next whether the boot-print evidence qualifies as “potentially useful” under

Youngblood. Because Turner has not shown “bad faith” on the part of the government, as required

by Youngblood, suppression of the boot-print evidence would have been improper. Although Turner

10
argues that the government displayed bad faith in his case similar to that found in United States v.

Bohl, 25 F.3d 904 (10th Cir. 1994), Turner’s case is distinguishable from Bohl. In Bohl, the

government deliberately destroyed evidence that was central to its case—despite the fact that the

defendants had previously requested access to the evidence—and there was independent evidence

indicating that the materials may have had exculpatory value. In addition, the evidence that the

government presented to the defense for testing in Bohl was not of sufficient size to allow proper

chemical testing and the government admitted that the photographs it had taken of the evidence were

of no use to the defendants. In contrast, in Turner’s case the testing and destruction of the evidence

occurred before Turner was indicted in 2005; thus, he did not have an opportunity to request separate

testing of the evidence before its destruction. Also, the photograph taken in this case, unlike the

photograph in Bohl, was part of the method of forensic analysis. The FBI used the photograph taken

by a forensic photographer and a test impression of the boot to determine whether the print on the

glass plate matched that of Turner’s boot. Because it was not apparent after testing that the boot-

print evidence was exculpatory and because the “conduct” of the police does not “indicate that the

evidence could form a basis for exonerating the defendant,” Youngblood, 488 U.S. at 58, destruction

of the boot-print evidence during the fingerprint analysis does not indicate bad faith on the part of

the government. Therefore, bearing in mind that we must view the above facts in the light most

favorable to the government, we conclude that the district court properly denied the motion to

exclude the boot-print evidence because the boot print was not material exculpatory evidence under

Trombetta and was not destroyed in bad faith in violation of Youngblood.

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 2. Reliability of Boot-Print Analysis

Turner also appeals the district court’s denial of his motion to exclude based on the alleged

unreliability of the government expert’s boot-print analysis. In the seminal case, Daubert v. Merrell

Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the Supreme Court “established the standard for

admissibility of scientific expert testimony under Federal Rule of Evidence 702.”3 Champion v.

Outlook Nashville, Inc., 380 F.3d 893, 907 (6th Cir. 2004), cert. denied, 544 U.S. 975 (2005).

Because Daubert requires that “‘any and all scientific testimony or evidence admitted [be] not only

relevant, but reliable,’” id. (quoting Daubert, 509 U.S. at 589), a court must first assess “whether the

reasoning or methodology underlying the testimony is scientifically valid and [] whether that

reasoning or methodology properly can be applied to the facts in issue.” Id. (quoting Daubert, 509

U.S. at 592-93). Expert testimony, however, need not be “unassailable.” United States v. Mahone,

453 F.3d 68, 72 (1st Cir. 2006) (quotation omitted). “Vigorous cross-examination, presentation of

contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate

means of attacking shaky but admissible evidence.” Daubert, 509 U.S. at 596 (citation omitted).

Daubert provides us with a “non-exclusive checklist of factors” to employ when “assessing the

reliability of scientific expert testimony.” United States v. Beverly, 369 F.3d 516, 528 (6th Cir.

2004). The factors include:

3
Federal Rule of Evidence 702 states:
If scientific, technical, or other specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue, a witness qualified as an
expert by knowledge, skill, experience, training, or education, may testify thereto in
the form of an opinion or otherwise, 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.
FED . R. EVID . 702.

12
 1) whether the expert’s scientific technique or theory can be, or has been, tested; 2)
whether the technique or theory has been subject to peer review and publication; 3)
the known or potential rate of error of the technique or theory when applied; 4) the
existence and maintenance of standards and controls; and 5) whether the technique
or theory has been generally accepted in the scientific community.

Id. (citing Daubert, 509 U.S. at 592-95; Hardyman v. Norfolk & W. Ry., 243 F.3d 255, 260 (6th

Cir.2001)).

We conclude that the district court did not abuse its discretion by admitting the testimony of

the government expert regarding boot-print analysis. Turner asks us to focus on assessing the

reliability of the government expert’s analysis. Both the government expert, Smith, and the defense

expert, Koverman, testified that photographic analysis was recognized as a valid method of shoe-

print analysis within the scientific community. In addition, Smith testified that the government lab

methods were tested by an independent agency once during the year, and that he had never failed a

proficiency test. Also, the government presented evidence indicating that a book entitled Footwear

Impression Evidence by William J. Bodziak stated that “[p]ositive identifications may be made with

as few as one random identifying characteristic.” J.A. at 185 (Smith Test. at 25:19-20). Based on

the above, we conclude that the district court did not abuse its discretion in determining that the

government expert’s testimony met the Daubert standard and FED . R. EVID . 702.

We do not find persuasive Turner’s arguments that the electrostatic method should have been

used, and that the four points of comparison used by the government expert were insufficient to

conclude that the boot and the print on the glass matched. In short, the government and defense

experts disagreed as to whether the photographic or the electrostatic method would be better to use

on the boot print at issue—not whether the photographic method was a valid method, tested and

accepted by the larger scientific community. In addition, the record reveals that the experts also

13
disagreed about the number of points of comparison necessary for a positive match between the boot

and the print. These disputes go to the weight of the evidence rather than its admissibility.

In sum, Turner’s arguments regarding the appropriate boot-print analysis method and the

necessary number of points of comparison involve differences of opinion between the experts that

the jury must weigh, not a court. See Champion, 380 F.3d at 900. Therefore, we conclude that the

district court did not abuse its discretion by admitting the government expert’s testimony regarding

the analysis of the boot print.

C. Cumulative Error: Denial of a Motion for Mistrial and Admission of Alleged Hearsay

1. Standard of Review

We review the district court’s admission or exclusion of evidence and its denial of a motion

for mistrial for abuse of discretion. United States v. Davis, 514 F.3d 596, 611 (6th Cir. 2008).

However, we review de novo the district court’s conclusions of law and review for clear error any

factual determinations. Id. “We have held that these standards ‘are not in fact inconsistent, because

it is an abuse of discretion to make errors of law or clear errors of factual determination.’” Id.

(internal quotation omitted).

2. Analysis

Turner argues that there were several errors that, when combined, warrant vacating his

sentence and retrying him. We conclude that any errors were harmless and do not, even in

combination, warrant a retrial.

“A constitutional error is harmless when it appears beyond a reasonable doubt that the error

complained of did not contribute to the verdict obtained.” Esparza, 540 U.S. at 17-18 (internal

quotation marks omitted). As the Supreme Court held in Kotteakos v. United States, 328 U.S. 750

14
(1946), “if one cannot say, with fair assurance, . . . that the judgment was not substantially swayed

by the error, it is impossible to conclude that substantial rights were not affected.” Id. at 765. See

Haywood, 280 F.3d at 724 (applying this standard in the criminal context). An error may be

harmless if the contested evidence was already properly admitted through other witnesses. United

States v. Sprouts, 282 F.3d 1037, 1044 (6th Cir. 2002). Although some errors may be harmless in

isolation, a combination of such errors may be so prejudicial as to warrant a new trial for the

defendant. United States v. Parker, 997 F.2d 219, 222 (6th Cir. 1993); United States v. Hines, 398

F.3d 713, 719 (6th Cir. 2005).

a. Denial of Motion for Mistrial After Officer Ray’s Testimony

First, Turner appeals the district court’s denial of his motion for a mistrial after Ray testified

that officers found marijuana in Smith-Knight’s vehicle during their search. The district court held

that the information was not sufficiently prejudicial to warrant a mistrial, and that the situation could

be ameliorated by (1) a leading question aimed at establishing that the marijuana had no relevance

to the case and (2) a curative instruction by the district court. We consider five factors when

determining if certain statements warrant granting a mistrial:

(1) whether the remark was unsolicited, (2) whether the government's line of
questioning was reasonable, (3) whether a limiting instruction was immediate, clear,
and forceful, (4) whether any bad faith was evidenced by the government, and (5)
whether the remark was only a small part of the evidence against the defendant.

Caver, 470 F.3d at 243 (quoting Zuern v. Tate, 336 F.3d 478, 485 (6th Cir. 2003)). When engaging

in this analysis, “‘the primary concern is fairness to the defendant.’” Id. (quotation omitted). To

minimize any possible unfair prejudice to the defendant, the district court may give a limiting

15
instruction to the jury regarding the appropriate use of the evidence presented. United States v.

Foster, 376 F.3d 577, 592 (6th Cir.), cert. denied, 543 U.S. 1012 (2004).

We conclude that the district court did not abuse its discretion by denying Turner’s motion

for a mistrial. The five factors laid out by Caver do not weigh in favor of granting a mistrial based

on Ray’s testimony. We address each factor in turn. First, Ray could have answered the question

posed by the prosecutor without mentioning marijuana. Indeed, after Ray’s answer and the defense

counsel’s objection, the prosecutor immediately asked for a limiting instruction. The district court

found that this was “a slip on the part of this officer.” J.A. at 569 (2-199:178-19). Because our

reading of the record causes us to agree with the district court that Ray’s statement was unsolicited,

we conclude that the district court’s factual finding (that this was a “slip”) is not clearly erroneous.

Second, the prosecutor’s line of questioning was reasonably related to discovering the relevant items

found during the search. Third, the district court crafted a strategy for approaching the jury: both

a leading question by the prosecutor to clarify and an immediate limiting instruction. Fourth,

because the district court found this to be a “slip,” J.A. at 569 (2-199:178-19), it did not consider this

to be evidence of bad faith on the part of the government. Again, because the record does not reveal

the district court’s finding to be clear error, we conclude that the government did not act in bad faith.

Finally, Ray’s statement regarding the marijuana was not related to this case; despite the fact that it

was prejudicial to the defendant to be associated with illegal drugs, ample other evidence clearly

weighed heavily against the defendant. Based on the foregoing, we conclude that the district court

did not abuse its discretion by denying Turner’s motion for mistrial after Ray’s testimony connected

him with an illegal substance, marijuana.

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 b. Officer McDaniel’s Testimony

Next, Turner argues that the district court should have barred McDaniel’s testimony about

the background of the robbery investigation under FED . R. EVID . 403; he argues that the statements

made by McDaniel were “of little probative value when balanced against the obvious prejudice” to

him. Appellant Br. at 29. The district court found that McDaniel’s statements were not hearsay, and

that his testimony was properly admitted under Rule 403 because it was not more prejudicial than

probative. Turner concedes in his brief that the district court’s determination that McDaniel’s

statements did not constitute hearsay was not clearly erroroneous. See Appellant Br. at 28-29;

Caver, 470 F.3d at 239. As a result of this concession, our focus turns to whether the statements

were more unfairly prejudicial than probative under Rule 403.

Our precedent states that “[b]ackground information that explains how law enforcement came

to be involved with a particular defendant is not hearsay, because it is not being offered for the truth

of the matter asserted.” Caver, 470 F.3d at 239 (citation omitted); United States v. Evans, 883 F.2d

496, 501 (6th Cir. 1989). “‘When inculpatory out of court assertions name the criminal defendant

in connection with ‘setting the scene’ for an investigation, the question of unfair prejudice under

Rule 403 of the Federal Rules of Evidence almost always arises.” United States v. Pulley, 922 F.2d

1283, 1288 (6th Cir. 1991) (quotation marks omitted). Rule 403 provides: “Although relevant,

evidence may be excluded if its probative value is substantially outweighed by the danger of unfair

prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste

of time, or needless presentation of cumulative evidence.” FED . R. EVID . 403. We have previously

held that “‘[t]he relevance and probative value of ‘investigative background’ is often low, but the

potential for abuse is high.’” Pulley, 922 F.2d at 1288 (quotation omitted). However, “when

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reviewing the balancing determinations required by Rule 403, this court must maximize the

probative value of the challenged evidence and minimize its potential for unfair prejudice.” United

States v. Lloyd, 462 F.3d 510, 516 (6th Cir. 2006).

We conclude that the district court did not abuse its discretion by admitting McDaniel’s

testimony because the testimony was not more unfairly prejudicial than probative and thus Rule 403

was not violated. Defense counsel’s opening statement began with a description of the bank robbery

for which Turner was being tried and stated explicitly that another individual, Artie Ware (“Ware”),

was responsible. Defense counsel emphasized during his opening statement that, despite all of the

fingerprint evidence that was found, the police never tested to see if the prints matched those of

Ware. To address the issue of whether Ware—not Turner—was the proper suspect, the government

sought to introduce testimony by McDaniel about the development of the robbery investigation. In

sidebar conferences with the district court during the testimony of McDaniel, the government stated

that it would “gladly agree” to a limiting instruction that explained that McDaniel’s testimony was

“not being offered,” J.A. at 538 (Trial Tr. at 2-168:1-7), to prove that the physical characteristics of

the robber matched those of Turner; indeed, the government believed the fact that the physical

characteristics of the robber matched those of Turner had been (and would be) shown by other

witnesses. McDaniel testified that the initial suspect was Ware; however, because the physical

description of Ware did not match the physical descriptions given by the witnesses, attention turned

to Turner.

As in Pulley, the testimony offered by McDaniel touched upon a key issue regarding

allegedly improper investigatory methods in the case: had the police focused on the correct suspect?

The fact that McDaniel testified directly that Turner matched the witnesses’ descriptions of the

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robber’s tattoo and age is troubling; the government could have achieved its purpose by explaining

how officers eliminated Ware as a suspect without mentioning that Turner matched the description

provided by witnesses. However, even if we were to believe that Rule 403 were violated, any error

stemming from McDaniel’s testimony was harmless because previous witnesses had testified about

the robber’s tattoo and approximate age, and Turner’s tattoo and approximate age were apparent to

the jury as he sat through the trial. See United States v. Powers, 500 F.3d 500, 510 (6th Cir. 2007)

(holding as harmless error admission of testimony deemed more detailed than necessary to establish

“context”). Two bank employees, Fisher and Kaddoura, testified that the robber had a tattoo under

one eye. One of Turner’s friends, Lisa Donald (“Donald”) testified that Turner had a tattoo near his

right eye; she also testified that Ware, with whom she had had a relationship, did not have facial

tattoos. In addition, Angus, another bank employee, testified that the bank robber was approximately

twenty years old.

Based on the foregoing, we conclude that the district court did not abuse its discretion by

admitting McDaniel’s testimony. Even if the scope of McDaniel’s testimony was greater than

necessary to achieve the government’s purpose, any error was harmless because the jurors heard

other testimony about Turner’s physical attributes from other witnesses and could observe him for

themselves in the courtroom. In addition, because of the weight of the other evidence against Turner,

it could not be said that McDaniel’s statements substantially swayed the jury to convict Turner.

c. Bank Investigator’s Report

Finally, we consider Turner’s argument that the district court erred by admitting the report

of, and testimony by, the bank investigator detailing the denominations of the money missing from

the bank. As we stated above, an error may be harmless if the contested evidence was already

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properly admitted through other witnesses. Sprouts, 282 F.3d at 1044. We conclude that, even if

it was error to admit the report and testimony by the bank investigator detailing the denominations

of the missing money, any error was harmless because several witnesses testified as to the

denominations for which Turner asked and was given. Three bank employee witnesses—Fisher,

Crone, and Kaddoura—testified that Turner asked for fifty and one-hundred dollar bills. Because

three witnesses gave testimony about the denominations of money demanded and received by Turner

prior to that of the bank investigator, any error in admitting the bank investigator’s testimony was

harmless.

d. Cumulative Effect

Having analyzed each of the alleged errors above, we must now consider their cumulative

effect. We have held that “the cumulative effect of individual errors may result in a trial setting that

is fundamentally unfair.” Hines, 398 F.3d at 719. In this case, one of the alleged errors—the denial

of the motion for mistrial—was not an error, and the other alleged errors—the admission of

McDaniel’s testimony and the bank investigator’s testimony and report—were at most harmless

errors. We conclude that the cumulative effect of the admission of McDaniel’s testimony and the

bank investigator’s testimony and report did not lead to a “fundamentally unfair” trial, Hines, 398

F.3d at 719, because the information revealed by these sources was also presented by other witnesses

during the trial. The cumulative effect of these (at most) harmless errors was not “so prejudicial as

to warrant a new trial.” Parker, 997 F.2d at 222.

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D. Motion for Judgment of Acquittal

1. Standard of Review

We review de novo a district court’s denial of a motion for judgment of acquittal, and we

affirm the district court’s decision “if the evidence, viewed in the light most favorable to the

government, would allow a rational trier of fact to find the defendant guilty beyond a reasonable

doubt.” United States v. Solorio, 337 F.3d 580, 588 (6th Cir. 2003) (internal quotation marks

omitted). Defendants bear a heavy burden in attempting to show that the evidence used to convict

them was insufficient. United States v. White, 492 F.3d 380, 393 (6th Cir. 2007).

2. Analysis

On appeal, Turner argues that there was insufficient evidence to support his conviction for

bank robbery because none of the witnesses “clearly identif[ied] [him] as the robber.” Appellant Br.

at 35. However, there is no requirement under the law that a witness see the robber and identify him

or her; circumstantial evidence alone may be sufficient to sustain a conviction. United States v.

Blackwell, 459 F.3d 739, 760 (6th Cir. 2006). Thus, there is no need for a witness to have

specifically identified Turner as the robber in this case in order to sustain his conviction.

Accordingly, in light of the ample evidence presented by the government in this case, we hold that

the district court properly denied Turner’s motion for judgment of acquittal.

III. CONCLUSION

First, we hold that, because the jacket and money found in one of the jacket’s pockets were

only a small part of the circumstantial evidence that the jury could have used to find Turner guilty,

even if the district court erred by denying Turner’s motion to suppress the jacket and money found

within it, any such error was harmless. Second, we hold that, because the boot-print evidence was

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not material exculpatory evidence and was not destroyed in bad faith by the government, the district

court properly denied Turner’s motion to exclude this evidence. Also, we conclude that the district

court properly denied Turner’s motion to exclude the boot-print analysis because the government

expert’s testimony regarding boot-print analysis met the requirements of Daubert and FED . R. EVID .

702. Third, we hold that each of the alleged trial errors were at most harmless error, and even their

cumulative effect did not render the trial fundamentally unfair. Finally, because the circumstantial

evidence presented at trial was sufficient to support the jury’s verdict, we hold that the district court

properly denied Turner’s motion for judgment of acquittal. Therefore, we AFFIRM the district

court’s judgment.

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