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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF IOWA CENTRAL DIVISION * * * * * * * * * * *

UNITED STATES OF AMERICA, Plaintiff, v. JASON LEE BOWERS, Defendant.

4:09-cr-00188

ORDER

Before the Court is a Motion for Judgment of Acquittal and for New Trial filed by Jason Lee Bowers (“Bowers”) on March 11, 2010.1 Clerk’s No. 56. The Government filed a resistance on March 29, 2010. Clerk’s No. 58. The matter is fully submitted. I. PROCEDURAL BACKGROUND On November 18, 2009, a grand jury returned an indictment charging Defendant with four counts of armed bank robbery, in violation of 18 U.S.C. § 2113, and four corresponding counts of use of a firearm during or in furtherance of a crime of violence, in violation of 18 U.S.C. § 924(c). Clerk’s No. 19. More specifically, Count One alleges that Defendant robbed the South Story Bank in Slater, Iowa on October 9, 2009, and Count Two alleges that he used a shotgun during and in furtherance of this robbery. Id. Similarly, Count Three alleges that Defendant robbed Farmers & Merchants State Bank in St. Charles, Iowa on October 16, 2009, and Court Four alleges that he used a revolver during and in furtherance of this robbery. Id.

Despite the fact that Defendant entitled his Motion as a “Motion for Judgment of Acquittal and for a New Trial,” Defendant failed to both request and substantively argue for a judgment of acquittal in his Motion and in his supporting brief. Accordingly, and in light of the Court’s ultimate determination about the weight of the evidence in this case, the Court will not construe Defendant’s Motion as including a Rule 29 challenge.

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Likewise, Count Five alleges that Defendant robbed Peoples Trust & Savings Bank in Rippey, Iowa on October 17, 2009, and Count Six alleges that he carried a revolver during and in furtherance of this robbery. Id. Finally, Count Seven alleges that Defendant robbed First Trust Savings Bank in Oxford, Iowa on October 21, 2009, and Count Eight alleges that he carried a revolver during and in furtherance of this robbery. Id. Defendant elected to stand trial on these charges, and on March 10, 2010, a jury returned a guilty verdict against him on each of the eight counts. Clerk’s No. 48. In his Motion, Defendant requests that the Court grant him a new trial on Counts Four, Six, and Eight because “[t]he jury’s verdict was against the weight of evidence.” Def.’s Mot. ¶ 3. According to Defendant, “[t]he evidence supported [Defendant’s] claim that the revolver he used in the last three bank robberies was not a real firearm, but a cap gun.”2 Id. The Government counters, arguing that in light of the bullet fragments found at one of the banks, the discovery of a live round in a getaway vehicle Defendant stole, and Defendant’s own confession, the evidence heavily supports the verdicts. Pl.’s Resistance at 2-3. II. LAW AND ANALYSIS Federal Rule of Criminal Procedure 33 provides: “Upon the defendant’s motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires.” This

In his supporting brief, Defendant provides no specific arguments as to how the verdict is against the weight of evidence or how the evidence indicates that Defendant carried a cap gun, stating only: “While the Court found at trial that the standard for granting judgment of acquittal was not met in his case, [Defendant] asks the Court, having heard all the evidence at trial, to find that the jury’s verdicts on counts 4, 6 and 8 were against the weight of the evidence, and to order a new trial.” Def.’s Mot. at 2. Although the Court is familiar with the evidence in this case, the Court urges defense counsel to present more nuanced arguments in the future because the Court generally cannot know a case as well as the attorneys who are trying it. -2-

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rule enables the Court to grant a new trial if “the evidence weighs so heavily against the verdict that a miscarriage of justice may have occurred.” United States v. Starr, 533 F.3d 985, 999 (8th Cir. 2008) (internal quotations and citations omitted). In making this determination, the Court “is permitted to ‘weigh the evidence, disbelieve witnesses, and grant a new trial even where there is substantial evidence to sustain the verdict.’” United States v. McClellon, 578 F.3d 846, 857 (8th Cir. 2009) (quoting Starr, 533 F.3d at 999). Moreover, the Court is granted broad discretion in passing upon motions for new trial, and its decision is subject to reversal only for a clear abuse of discretion. United States v. Bass, 478 F.3d 948, 951 (8th Cir. 2007) (“A district court’s ‘determination that a new trial should be granted on the ground that the verdict is against the weight of the evidence is entitled to great deference and is reversible only upon a strong showing of abuse.’”) (quoting King v. Davis, 980 F.2d 1236, 1237 (8th Cir. 1992)). The Eighth Circuit has, however, repeatedly cautioned that district courts “must exercise the Rule 33 authority sparingly and with caution.” United States v. Campos, 306 F.3d 577, 579 (8th Cir. 2002) (internal quotations and citations omitted). In order to establish Counts Four, Six, and Eight, the Government was required to prove that Defendant carried a real firearm, that is, a “weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive,” not a nonfunctional replica or a toy gun. 18 U.S.C. § 921(3)(A); see also United States v. GarciaHernandez, 530 F.3d 657, 662-63 (8th Cir. 2008) (discussing whether sufficient evidence existed for a jury to find that a firearm was real and not “a toy gun”). The Government may rely on all the evidence presented at trial to establish this element of the offense and is not required to actually admit the weapon to sustain a conviction. See Garcia-Hernandez, 530 F.3d at 662

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(“However, ‘proof that a defendant possessed a firearm may be established solely by eyewitness testimony where the gun is not recovered or introduced at trial.’” (quoting United States v. Anderson, 78 F.3d 420, 423 (8th Cir. 1996)). Although this is a close case, the Court believes the Government presented sufficient evidence to support the jury’s verdicts that Defendant carried a real revolver during the St. Charles, Rippey, and Oxford bank robberies. Defendant confessed to robbing all four banks, and further admitted that he robbed the St. Charles, Rippey, and Oxford banks with a “revolver.” Ex. 146. Defendant also admitted that he “accidentally hit the trigger as [he] was getting ready to leave” the Oxford Bank, thereby causing the “gun [to go] off” and prompting him to “apologize” before he left the bank. Id. Additionally, Defendant stated: “The whole ride home I thought about what if a ricochet would [have] hit someone.” Id. Defendant’s account of the Oxford bank robbery, as well as the remaining bank robberies, is generally supported by a majority of the remaining evidence. Several Oxford bank employees testified that they heard a pop, or what sounded similar to a gun discharging, as Defendant left the bank. March 9, 2010 Tr.3 at 85 (D.Z.4 testifying: “Q. Okay. Did you hear him leave? A. I heard a pop.”), 99 (P.B. testifying: “Q. Okay. What happened next? A. After that, all of a sudden I heard a shot and I screamed and I heard a comment of, ‘Oh, shit. Sorry.’”), 109 (similar), 117 (similar), 126 (similar). Additionally, FBI Special Agent Thomas Reinwart (“Agent Reinwart”) testified that he found a depression in the floor of the Oxford bank and metal

All transcript references refer to the daily unedited RealTime transcript provided to the Court by the reporter. The Court will only refer to the victims of the robberies by their initials, in order to protect their privacy. -44

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pieces, appearing to be bullet fragments, under a nearby mat, which suggested that “the bullet when fired had skipped off of the tile under the mat and landed and contained itself underneath the mat.” March 10, 2010 Tr. at 52-55. Likewise, FBI Special Agent Atwood testified that, based upon his extensive experience as a firearms instructor, he thought the metal pieces were fragments from a bullet. Id. at 111. Moreover, the Government found an unspent bullet in the vehicle Defendant stole from the Oxford bank, which did not belong to the owner of the car. March 9, 2010 Tr. at 133. Finally, the numerous video recordings of the various bank robberies and the testimony of those present at the time of the robberies all indicate that Defendant was carrying what appeared to be a silver revolver. Despite this impressive array of evidence, the Court still has some concerns about the overall weight of the evidence in this case. John Webb (“Webb”) of the FBI’s Firearms/Toolmarks Unit examined the metal fragments taken from under the mat of the Oxford bank and concluded that they “are not consistent with bullet fragments and bear no marks of value for comparison purposes.” Ex. 172. His conclusion is consistent with the seemingly high improbability that all the fragments from a shattered bullet would come to rest near each other, let alone under a mat, without causing any damage to either the mat or the floor under it. March 10, 2010 Tr. at 72-81 (Reinwart testifying, amongst other things, that he only found fragments under the mat even though bullet fragments tend to scatter). Assuming the Court credits the most qualified firearms expert in this case, the Government’s ability to prove Defendant’s revolver was real is tenuous, especially in light of the extremely realistic replica revolver he admitted into evidence. Def.’s Ex. C. The Government did not find any other physical evidence at the Oxford bank to indicate that Defendant’s revolver discharged a round, despite the noise it

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made. Indeed, one of the Oxford bank employees testified that he initially concluded Defendant had fired a blank because of the lack of resulting damage to the bank.5 March 9, 2010 Tr. at 134 (“Q. Thank you. Ms. Scorpiniti asked you a number of questions about the statement you made repeatedly in your 911 calls saying that it must have been a–it must have been a blank, he must have been shooting blanks; is that right? A. Correct. Yes. Q. And the reason being that there weren’t any slugs or indentations or holes left in the bank as a result of the gunshot? A. That’s what I initially thought, yes.”). Additionally, no individual present during the St. Charles, Rippey, and Oxford robberies were familiar enough with firearms to discern whether Defendant’s revolver was real, and many of them described it and the sound it made as similar to that of a toy or cap gun. See March 9, 2010 Tr. at 122 (“Q. Sometime shortly after this incident you spoke with special agent David McCracken of the Federal Bureau of Investigation? A. Uhhuh. Q. And you told him that the gunshot was really loud and sounded like a cap gun? A. I’ve never actually heard a real gun fire, so– Q. Is that what you told him? A. Yeah.”); 135 (“Q. And it didn’t sound like a real gun? A. Yeah. Yes. Q. Is there any reason it could not have been a cap gun? A. Is there any– No, it could have been.”). Finally, Defendant seemingly lied in his confession by claiming he acted alone, which tends to erode the credibility of his remaining admissions. March 10, 2010 Tr. at 145 (“Q. And he insisted that he never got any help from anybody? A. Yes, he did. Q. And you didn’t believe that? A. No, I didn’t. Q. Because you knew that there was evidence to prove that he was exaggerating his role? A. Yes.”). Nevertheless, the Court cannot explain away the live round found in the vehicle

The bank employee suggested that he changed his opinion after the FBI informed him that bullet fragments were retrieved from under the mat. March 9, 2010 Tr. at 134. -6-

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Defendant stole or Defendant’s subsequent concern about the safety of others in the Bank, and accordingly, finds that the weight of the evidence supports the jury’s verdicts. III. CONCLUSION For the reasons discussed above, Defendant’s Motion for Judgment of Acquittal and for New Trial (Clerk’s No. 56) is DENIED. IT IS SO ORDERED. Dated this ___21st___ day of April, 2010.

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