United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 06-3801
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United States of America, *
*
Appellee, *
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v. * Appeal from the United States
* District Court for the
James Edward Lewis, * Southern District of Iowa.
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Appellant. *
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*
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Submitted: April 13, 2006
Filed: April 26, 2007
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Before MELLOY, BOWMAN and GRUENDER, Circuit Judges.
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GRUENDER, Circuit Judge.
A jury convicted James Edward Lewis of two counts of bank robbery, both in
violation of 18 U.S.C. § 2113(a), and one count of possession of a firearm in
furtherance of a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A). Lewis
appeals, arguing that the district court1 erred in denying his motion to suppress DNA
1
The Honorable Ronald E. Longstaff, then Chief Judge, United States District
Court for the Southern District of Iowa.
evidence obtained without an opportunity to consult with counsel and abused its
discretion by admitting evidence of his prior state bank robbery conviction at trial.
We affirm.
I. BACKGROUND
This case stems from three bank robberies that were committed within six
months of each other. According to eyewitnesses, Bank of America in Urbandale,
Iowa, was robbed in February 2004 by a man wearing dark gloves and a plaid scarf
that completely covered his face. He threatened the teller with a gun and forced her
to place money into his bag. The robber left the bank with the bag, entered the
passenger side of a vehicle waiting for him outside the bank and fled. In July 2004,
West Bank in Urbandale was robbed by a man wearing a mask, gloves, white tennis
shoes and a helmet that completely covered his face. He threatened the teller with a
“western-style” gun and forced her to place money into his bluish-green bag. The
robber fled on a bicycle. Finally, in August 2004, the River City Community Credit
Union in Davenport, Iowa, was robbed by a man wearing gloves, a black mask and
a blue windbreaker with the hood pulled up over his head. The man threatened the
River City teller with a gun, forcing her to put money into his bag. The robber fled
on a bicycle. During the investigation of the three robberies, authorities recovered
several clothing items believed to be worn by the robber.
Iowa state authorities arrested Lewis for the River City Community Credit
Union robbery and charged him with first-degree robbery. Pursuant to an order issued
by the Iowa District Court for Scott County, state authorities collected a buccal swab
from Lewis for DNA analysis. Prior to the buccal swab, Lewis was not given the
opportunity to contact an attorney. The results from the buccal swab revealed that
Lewis’s DNA matched the DNA found on a pair of gloves recovered from outside the
credit union. Lewis was subsequently convicted for the River City Community Credit
Union robbery in Scott County, Iowa (“Scott County conviction”).
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Federal investigators used the buccal swab results obtained by the Iowa
authorities and found that Lewis’s DNA matched that found on clothing items
recovered during the investigation of the Bank of America and West Bank robberies.
A federal grand jury indicted Lewis on two counts of bank robbery, one count each
for the Bank of America and West Bank robberies, and one count of possession of a
firearm in furtherance of a crime of violence, relating to the West Bank robbery.
Prior to trial, Lewis filed a motion to suppress the DNA test results obtained
from his buccal swab arguing that the collection of the swab violated Iowa law and
his Sixth Amendment right to counsel. The district court held a hearing and denied
his motion. Lewis also filed a motion in limine seeking to prevent the Government’s
introduction of his Scott County conviction arguing that it was improper character
evidence. The Government argued that it was admissible under Federal Rule of
Evidence 404(b) to prove identity because the characteristics of the three robberies
established a pattern. The district court did not rule on the motion prior to trial, but
it allowed the conviction into evidence over Lewis’s objection. At that time, the
district court instructed the jury that the Scott County conviction was being admitted
for the sole purpose of identity and could not be used as evidence of criminal
disposition. The jury convicted Lewis on all three counts. The district court
sentenced him to 180 months’ imprisonment on each of the bank robbery charges, to
be served concurrently, and 84 months’ imprisonment for the firearm charge, to be
served consecutively. Lewis appeals the district court’s denial of his motion to
suppress the buccal swab evidence, alleging a violation of Iowa Code § 810.12(2) and
the Sixth Amendment, and its admission of his Scott County conviction, alleging a
violation of Rule 404(b).2
2
Lewis also raised an ineffective assistance of counsel claim. “In general, an
ineffective assistance of counsel claim is not cognizable on direct appeal. Instead,
such a claim is properly raised in a 28 U.S.C. § 2255 action. We will consider an
ineffective assistance of counsel claim on direct appeal only in exceptional cases
where the district court has developed a record on the ineffectiveness issue or where
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II. DISCUSSION
In his first claim, Lewis argues that the district court erred in denying his
motion to suppress the buccal swab evidence because it was collected before he was
afforded a reasonable opportunity to consult with counsel. We review the district
court’s conclusions of law regarding a motion to suppress de novo and its fact findings
for clear error. United States v. Sanders, 424 F.3d 768, 772-73 (8th Cir. 2005).
The right to counsel under the Sixth Amendment applies only to “critical
stages” of the proceedings against the defendant. United States v. Wade, 388 U.S.
218, 224-25 (1967). Critical stages may include, among other things, post-indictment
line-ups, Kirby v. Illinois, 406 U.S. 682, 690 (1972), arraignment, Hamilton v.
Alabama, 368 U.S. 52, 53 (1961), and entering a plea, White v. Maryland, 373 U.S.
59, 60 (1963), but do not include the taking of handwriting exemplars, Gilbert v.
California, 388 U.S. 263, 267 (1967). It is clear that scientific analyses of evidence
such as “fingerprints, [a] blood sample, clothing, hair and the like . . . are not critical
stages since there is minimal risk that his counsel’s absence at such stages might
derogate from his right to a fair trial.” Wade, 388 U.S. at 227-28. “The denial of a
right to have [the defendant’s] counsel present at such analyses does not therefore
violate the Sixth Amendment . . . .” Id. at 228; see also South Dakota v. Neville, 459
U.S. 553, 559 n.8 (1983); Schmerber v. California, 384 U.S. 757, 765-66 (1966);
Freeman v. Jackson, 107 F.3d 875 (8th Cir. 1997) (unpublished table decision)
(holding that defendants have no right to consult with counsel prior to giving blood
and saliva samples) (citing Neville, 459 U.S. at 559 n.8; Schmerber, 384 U.S. at 765-
66). Accordingly, we hold that the collection of the buccal swab and the
the result would otherwise be a plain miscarriage of justice.” United States v.
Hernandez, 281 F.3d 746, 749 (8th Cir. 2002) (internal citation and quotation
omitted). Because neither exception applies here, we decline to address Lewis’s
ineffective assistance of counsel claim at this time.
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Government’s subsequent use of the DNA results did not violate Lewis’s Sixth
Amendment right to counsel. See Wade, 388 U.S. at 228.3
Lewis also claims that the collection of the buccal swab violated an Iowa statute
that provides, “the court shall . . . afford a reasonable opportunity for the person to
consult with a lawyer” prior to the administration of a buccal swab. Iowa Code
§ 810.12(2). “We have consistently held that evidence obtained in violation of a state
law is admissible in a federal criminal trial if the evidence was obtained without
violating the Constitution or federal law.” United States v. Padilla-Pena, 129 F.3d
457, 464 (8th Cir. 1997). Having concluded that Lewis’s Sixth Amendment right to
counsel was not violated by the collection of the buccal swab and in light of the fact
that Lewis does not argue that the collection violated any other provision of federal
law, we reject Lewis’s argument that the DNA results must be suppressed in the
federal prosecution because the collection of the buccal swab may have violated Iowa
Code § 810.12(2). See id. Therefore, the district court’s denial of Lewis’s motion to
suppress the buccal swab evidence is affirmed.4
In his second claim, Lewis asserts that the district court abused its discretion in
admitting the Scott County conviction under Rule 404(b). “We review [the district
court’s] Rule 404(b) decision for abuse of discretion and reverse only when such
evidence clearly had no bearing on the case and was introduced solely to prove the
defendant’s propensity to commit criminal acts.” United States v. Almendares, 397
3
Lewis characterizes the Wade and Schmerber decisions as “incorrect” and asks
this court to deviate from them. Even if we were so inclined, which we are not, we
would be without power to do so. See United States v. Cutshall, 75 F.3d 426, 429 (8th
Cir. 1996) (“We, however, remain bound by the Supreme Court and our prior
precedent.”).
4
We also reject Lewis’s invitation for us to overrule Padilla-Pena because we
are “not at liberty to overrule a decision of another panel.” United States v. Prior, 107
F.3d 654, 660 (8th Cir. 1997).
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F.3d 653, 661 (8th Cir. 2005) (internal citation and quotation omitted). “Evidence of
other crimes, wrongs, or acts is not admissible to prove the character of a person in
order to show action in conformity therewith. It may, however, be admissible for
other purposes, such as . . . identity.” Fed. R. Evid. 404(b). “[W]here the pattern and
characteristics of the crimes [are] so unusual and distinctive as to be like a signature,
evidence of a defendant’s prior crimes is admissible to prove that it was indeed the
defendant that committed the charged crime.” United States v. Carroll, 207 F.3d 465,
468 (8th Cir. 2000) (internal citation and quotation omitted).
In this case, we need not decide whether the district court abused its discretion
in admitting the Scott County conviction because we conclude that even if it were
error, it would be harmless. See Fed. R. Crim. P. 52(a); United States v. Red Bird, 450
F.3d 789, 793 (8th Cir. 2006). “An evidentiary error, such as this one, is harmless if,
after reviewing the entire record, we determine that the substantial rights of the
defendant were unaffected, and that the error did not influence or had only a slight
influence on the verdict.” Carroll, 207 F.3d at 470; accord Fed. R. Crim. P. 52(a).
Further, “[i]mproper admission of evidence which is cumulative of matters shown by
admissible evidence is harmless error.” United States v. Triplett, 104 F.3d 1074, 1079
(8th Cir. 1997).
The Government presented testimony from a Bank of America teller
establishing that the robber wore a plaid scarf that completely covered his face, used
a gun to threaten the teller, and had a bag to carry the money. When the robber left
the bank, the bank manager observed him get into a vehicle and noted its license plate
number. Later, the police found a car with matching plates that the bank manager
identified as the getaway vehicle used by the robber. The police also found a plaid
scarf inside the vehicle that the bank teller identified as the one worn by the robber.
The West Bank teller testified that the robber wore a helmet, mask and gloves, carried
a bag in which to put the money, and threatened her with a western-style gun. The
bank manager observed the robber leave on a dark-colored bicycle. The police
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recovered a blue bike and a helmet approximately two blocks from the bank and a
revolver approximately two miles from the bank. The bank teller and bank manager
both identified the revolver as looking like the one used in the robbery. The bank
teller also identified the helmet as looking like the one worn by the robber. On the
same day as the West Bank robbery, Lewis went to his insurance office with a “big
wad of money” and paid his $500 premium. Finally, and most importantly, the
Government presented evidence that Lewis’s DNA was found on the plaid scarf and
bike helmet, both of which were identified by eyewitnesses. Because the results of
the test indicated that fewer than one out of a hundred billion individuals would be
expected to have the same DNA profile, the Government’s expert testified that the
DNA found on the recovered clothing items “could only have come from James
Edward Lewis or an identical twin.”
The Government’s highly probative DNA evidence was used to establish the
identity of the robber. The Scott County conviction was introduced for the same
purpose, identity, and the jury received an instruction from the district court
explaining as much. In light of our holding that the district court properly admitted
the DNA evidence, it follows that the Scott County conviction was “cumulative of [a]
matter[] shown by admissible evidence.” See Triplett, 104 F.3d at 1079. Moreover,
in light of the strength of the Government’s evidence supporting the conviction, we
do not believe that the admission of the Scott County conviction affected Lewis’s
substantial rights or influenced the verdict. Therefore, the admission of the Rule
404(b) evidence, even if erroneous, was harmless. See id.
III. CONCLUSION
Accordingly, we deny Lewis’s request for a new trial and affirm the judgment
of the district court.
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