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<pre>                  United States Court of Appeals <br>                      For the First Circuit <br>                       ____________________ <br> <br>No. 97-1827 <br> <br>                          UNITED STATES, <br> <br>                            Appellee, <br> <br>                                v. <br> <br>                         ANTHONY M. SHEA, <br> <br>                      Defendant, Appellant. <br> <br>                       ____________________ <br> <br>           APPEAL FROM THE UNITED STATES DISTRICT COURT <br> <br>                FOR THE DISTRICT OF NEW HAMPSHIRE <br> <br>          [Hon.  Paul J. Barbadoro, U.S. District Judge] <br> <br>                       ____________________ <br> <br>                              Before <br> <br>                     Torruella, Chief Judge, <br> <br>Wellford, Senior Circuit Judge, <br> <br>                    and Selya, Circuit Judge.  <br> <br>                      _____________________ <br> <br>     Albert E. Scherr, for appellant. <br>     Jean B. Weld, Assistant United States Attorney, with whom <br>Paul M. Gagnon, United States Attorney, was on brief, for appellee. <br> <br> <br> <br>                       ____________________ <br> <br>                        November 2, 1998 <br>                       ____________________

    TORRUELLA, Chief Judge.  Defendant Anthony M. Shea <br>appeals his four-count conviction for attempted armed bank robbery <br>under 18 U.S.C.  2113(a) and (d), use of a firearm during a crime <br>of violence in violation of 18 U.S.C.  924(c), being a felon in <br>possession of a firearm in violation of 18 U.S.C.  922(g)(1), and <br>two counts of interstate transportation of stolen motor vehicles in <br>violation of 18 U.S.C.  2312.  Shea was sentenced to 567 months of <br>imprisonment.  Shea challenges the admissibility of certain <br>evidence permitted by the district court.  We affirm.  <br>I.  BACKGROUND <br>    At approximately 7:00 p.m. on Friday, August 4, 1995, <br>Sheri Crawford, manager of the Londonderry, New Hampshire branch of <br>the First New Hampshire Bank, and Tammy Lajoie, a bank teller,  <br>were closing up the bank when they heard the sound of breaking <br>glass.  The employees looked up to see two masked robbers wearing <br>gloves and armed with revolvers.  One of the robbers, who guarded <br>Crawford, had a "forward, stretched-out neck" and held a shiny, <br>silver revolver on Crawford throughout the robbery attempt.  The <br>other robber held a black revolver on Lajoie during the course of <br>the robbery attempt.  The men demanded all of the money in the bank <br>but when they learned that Crawford and Lajoie were not able to <br>open the bank's vault due to a timed locking device and that there <br>was no money contained in the tellers' stations, they left the bank <br>empty-handed.   <br>    The two men exited the bank through the same broken <br>window through which they had entered.  One of the robbers <br>apparently cut himself on his way through the broken window, as <br>bloodstains were discovered inside the bank and in a stolen minivan <br>believed to have been used as a getaway vehicle.  The police <br>processed the evidence and transmitted it to the FBI DNA laboratory <br>for analysis.  After analysis, the FBI concluded that the <br>defendant's genetic profile matched the genetic profile of some of <br>the unknown evidentiary samples.  The government introduced this <br>DNA evidence at trial. <br>    One week after the attempted Londonderry robbery, Shea <br>was arrested for another robbery in Wakefield, Massachusetts.  At <br>the time of his arrest, Shea had in his possession a black, .357 <br>caliber magnum revolver.  The government sought to introduce the <br>black revolver seized from Shea to prove that he was one of the men <br>involved in the attempted robbery in Londonderry.   <br>    At trial, Sheri Crawford described the robber who held a <br>gun on her during the course of the attempted robbery as "forward- <br>walking" with a "forward, stretched-out" neck.  She then identified <br>a photograph of the defendant with the same "leaning forward with <br>the head and the long neck."  Crawford further testified that the <br>robber with the "forward, stretched-out" neck held a shiny, silver <br>revolver. <br>    Tammy Lajoie testified that the second robber held a <br>black revolver on her during the course of the attempted robbery.  <br>Lajoie described the gun as approximately four inches in length.  <br>When Lajoie was shown the government's exhibit, the black, .357 <br>magnum revolver seized from the defendant, she testified that "it <br>looked like the gun that was pointed at [her]" during the attempted <br>robbery.  <br>    Shea moved to exclude both the DNA evidence and the black <br>revolver.  After an extensive 5-day evidentiary hearing, the <br>district court issued a detailed memorandum and order denying <br>Shea's motion and admitting the DNA evidence.  The district court <br>also denied Shea's motion to exclude the black revolver.  A jury <br>convicted Shea of attempted armed bank robbery, use of a firearm <br>during a crime of violence, and two counts of interstate <br>transportation of stolen motor vehicles.  He was acquitted on an <br>additional count of being a felon in possession of a firearm.  The <br>district court sentenced Shea to 567 months of imprisonment.  Shea <br>appeals.             <br>II.  DISCUSSION <br>    A.  Admission of the Handgun Evidence at Trial <br>    Shea argues on appeal that the district court erroneously <br>admitted the black revolver seized from him during his arrest on a <br>separate charge, one week after the attempted Londonderry robbery.  <br>Prior to trial, Shea filed a motion to exclude evidence of the <br>revolver.  The district court denied the motion and ruled the <br>revolver admissible under Fed. R. Evid. 404(b) "on the issue of <br>identity." <br>     We note at the outset that the district court's decision <br>to admit the gun into evidence as proof of identity under Rule <br>404(b) is a bit puzzling.  As indicated, Rule 404(b) governs the <br>admission of extrinsic evidence of "other crimes, wrongs, or acts."  <br>Here, the government sought to prove that the gun seized from the <br>defendant was the same gun used in the attempted Londonderry <br>robbery.  In other words, the government sought to introduce the <br>gun as intrinsic, direct evidence of the charged crime -- not as <br>Rule 404(b) evidence.  Because we conclude that the handgun was not <br>Rule 404(b) evidence at all, we review the district court's <br>admission of the gun applying a more appropriate Rule 401/403 <br>analysis. <br>     Rule 401 defines "relevant evidence" as "evidence having <br>any tendency to make the existence of any fact that is of <br>consequence to the determination of the action more probable or <br>less probable than it would be without the evidence."  Fed. R. <br>Evid. 401.  The principal issue at trial, as happens so often in <br>bank robbery cases, was the identification of Shea as one of the <br>bank robbers.  Indeed, the government introduced the black revolver <br>at trial to prove that Shea was one of the Londonderry robbers.   <br>     In United States v. Roberts, on facts similar to those <br>presented here, the Seventh Circuit affirmed the district court's <br>admission of a firearm seized from the defendant during his arrest <br>two days after the charged offense.  See 933 F.2d at 520.  The <br>defendant was charged with committing an armed robbery on July 20, <br>1989.  See id. at 517-18, 518.  Two days after the robbery, the <br>defendant was arrested while fleeing another robbery attempt.  Seeid. at 518.  During his flight from the police, Roberts either <br>dropped or threw a blue steel revolver off a rooftop.  See id.  The <br>Seventh Circuit concluded that "[e]vidence that Roberts was caught <br>with a dark steel revolver with a brown handle matching the <br>description of the weapon he used only two days earlier to rob the <br>. . . bank is directly relevant to the crimes with which he was <br>charged."  Id. at 520.   <br>     The Seventh Circuit's reasoning in Roberts applies to the <br>facts of the present case.  As in Roberts, the proof that upon <br>arrest Shea had in his possession a black .38 caliber revolver was <br>"directly relevant" to the crime with which he was charged.  SeeRoberts, 933 F.2d at 520.  As evidence linking Shea to the crime, <br>possession of the handgun tended to make his participation in the <br>robbery "more probable . . . than it would be without the <br>evidence."  Fed. R. Evid. 401.  As the district court explained, <br>despite testimony that the "forward-walking" robber identified as <br>Shea held a shiny, silver gun during the course of the attempted <br>robbery, a jury would still be entitled to infer either that Shea <br>was in fact the robber in possession of the black revolver during <br>the course of the robbery or that Shea was not in possession of the <br>black revolver during the robbery but somehow came into possession <br>of the gun at some point after the robbery.  We thus proceed to the <br>Rule 403 analysis. <br>     Under Rule 403, relevant evidence may be excluded if its <br>probative value "is substantially outweighed by the danger of <br>unfair prejudice."  Fed. R. Evid. 403.  The duty of weighing the <br>probative value of the gun-at-arrest evidence against its <br>prejudicial effect rested squarely on the shoulders of the trial <br>judge.  We review a trial court's Rule 403 balancing test for an <br>abuse of discretion, and only in "extraordinarily compelling <br>circumstances" will we reverse a district court's "on-the-spot <br>judgment" concerning the probative value and unfair effect of the <br>proffered evidence.  United States v. Lewis, 40 F.3d 1325, 1339 <br>(1st Cir. 1994) (quoting United States v. Rodrguez-Estrada, 877 <br>F.2d 153, 155-56 (1st Cir. 1989)).   <br>     Applying the abuse of discretion standard to the present <br>case, the district court's admission of the handgun must be upheld.  <br>The district court carefully considered arguments of counsel and <br>weighed the competing interests before admitting the evidence of <br>Shea's possession of the black revolver upon arrest.  Although <br>there were competing considerations, it was neither unreasonable <br>nor arbitrary to conclude that a probative inference could <br>reasonably be drawn from the evidence which outweighed its <br>prejudicial effect.  Moreover, the district judge was in a superior <br>position to evaluate the testimony of the two bank employees as <br>well as the other incriminating evidence against Shea.  Finally, <br>the district judge took positive steps to minimize the potential <br>impact of the evidence by carefully instructing the jury that the <br>gun was introduced for a limited purpose only.  Under these <br>circumstances, we hold that the district judge did not abuse his <br>discretion in concluding that the Rule 403 balance weighed in favor <br>of admitting the gun.     <br>     Even if the district court erred in admitting the gun <br>into evidence, we would conclude that such error was harmless.  <br>"[A] non-constitutional evidentiary issue will be treated as <br>harmless if it is highly probable that the error did not contribute <br>to the verdict."  United States v. Rose, 104 F.3d 1408, 1414 (1st <br>Cir. 1997), cert. denied, 117 S. Ct. 2424 (1997).  In a harmless <br>error inquiry, the government bears the burden of persuasion with <br>respect to showing that the error was harmless.   See id.  Although <br>the government here failed to argue that the district court's <br>admission of the gun, if error, was harmless, this Court has <br>recently held that appellate courts have the discretion on direct <br>appeal to overlook the government's failure to argue harmless error <br>and consider the issue of harmlessness sua sponte.  See id. <br>     We exercise our discretion to consider the issue of <br>harmlessness mostra sponte.  Here, we find that the evidence <br>admitted was plainly harmless.  The gun was cumulative, and the <br>weight of the additional evidence overwhelming.  The additional <br>evidence presented at trial consisted of: (1) DNA evidence <br>establishing that the defendant's blood matched blood taken from a <br>vertical blind at the bank and from three locations within the <br>getaway vehicle; (2) the testimony of an FBI forensic scientist <br>that the probability of a random DNA match was between 1 in 20,000 <br>and 1 in 2,000,000; (3) Shea's statement to James Tracy, an <br>associate of the defendant, that "[I]f blood's enough to convict, <br>I'm screwed."; (4) Sheri Crawford's physical description of one of <br>the robbers which closely matched Shea's appearance and; (5) the <br>testimony of a nursing assistant identifying a photograph of Shea <br>as the man she treated for sutures on a number of hand lacerations <br>several hours following the charged attempted robbery.  Under such <br>circumstances, it would be a waste of judicial resources to require <br>a new trial where the result would almost certainly be the same.  <br>See United States v. Rose, 104 F.3d at 1414.  <br>     B.  Admission of the DNA Evidence <br>     At trial, the government presented expert testimony <br>comparing Shea's DNA with DNA extracted from several of the <br>bloodstains discovered inside the Londonderry bank and in a stolen <br>minivan believed to have been used as the getaway vehicle.  The <br>government's expert, a forensic scientist employed by the FBI, used <br>a method of DNA analysis known as Polymerase Chain Reaction <br>("PCR"), in determining that Shea had the same DNA profile as the <br>person who left the bloodstains at the crime scene and in the <br>getaway vehicle.  Shea opposes the admission of the FBI's DNA <br>evidence on the ground that the FBI's PCR method is unreliable <br>science.  In addition, Shea argues that evidence of a random match <br>probability is barred by Rule 403 because the risk that the jury <br>would be misled by the evidence substantially outweighs its <br>probative value.   <br>     We review a district court's decision to admit DNA <br>evidence for abuse of discretion.  See United States v. Lowe, 145 <br>F.3d 45, 50-51 (1st Cir. 1998).  We hold that the district court <br>did not abuse its discretion in admitting the FBI's PCR evidence.  <br>We affirm the district court's admission of the DNA evidence on the <br>grounds stated in the district court's well-written memorandum and <br>order on this issue.  See United States v. Shea, 957 F. Supp. 331 <br>(D.N.H. 1997). <br>III.  CONCLUSION <br>     For the foregoing reasons, the defendant's conviction is <br>affirmed.</pre>

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