In United States v. Ware, No. 21-10539 (June 1, 2023) (Newsom, Luck, Tjoflat), the Court affirmed Mr. Ware’s convictions and sentence.
Mr. Ware was convicted of thirteen counts of Hobbs Act robbery and associated firearm offenses, and sentenced to life in prison. On appeal, he raised three challenges to his convictions and one challenge to his sentence.
Mr. Ware first contended the district court erred by not holding a formal Daubert hearing before admitting expert fingerprint evidence. Mr. Ware relied on a 2009 United States National Resource Counsel (“NRC”) report and subsequent 2016 President’s Counsel of Advisors on Science and Technology (“PCAST”) to argue that because fingerprint analysis involves individual human judgement, the resulting fingerprint comparison conclusion can be influenced by cognitive bias, rendering it unreliable. The Court noted that a Daubert hearing is not always required and found that the district court had not abused its discretion in not holding a hearing. The district court considered the reports and arguments presented and found that fingerprint evidence was reliable enough as a general matter to be presented to the jury. Many of the critiques of fingerprint evidence found in the PCAST report go to the weight that ought to be given fingerprint analysis, not to the legitimacy of the practice as a whole. Therefore, it was properly admitted and properly subject to cross-examination.
He next contended that the district court erred by admitting lay identification testimony by two FBI case agents who met with Mr. Ware upon his arrest. The court allowed the agents to identify Mr. Ware as one of the perpetrators of the robberies after viewing cellphone photos and surveillance footage and confirming his identification based upon their interactions with him after his arrest. The Court found no abuse of discretion because the agents had first-hand knowledge of Mr. Ware’s appearance outside the courtroom setting, and had contact with him for a combined 5 hours. They also familiarized themselves with him less than two weeks after the last robbery, whereas the jury–though also capable of comparing Mr. Ware in the courtroom with the surveillance footage and photos found in a cellphone–would have been doing so by looking at Mr. Ware almost two years later.
Finally, Mr. Ware contended the district court erred by instructing the jury on flight and concealment. The Court found that the district court did not abuse its discretion in giving the instruction because the government presented evidence of concealment–Mr. Ware was hiding under a bed when law enforcement arrived to arrest him.
Mr. Ware also challenged his sentence–more specifically, the application of the bodily restraint sentencing enhancement to three of the nine robberies. Section 2B3.1(b)(4)(B) provides an enhancement for robberies where a victim was physically restrained by being tied, bound, or locked up. But the enhancement also applies where the defendant’s conduct ensured the victims’ compliance and effectively prevented them from leaving a location. Here, the Court found the enhancement properly applied.