Submitted September 11, 2014.
Appeal from United States District Court for the Southern District of Iowa - Council Bluffs.
For United States of America, Plaintiff - Appellee: Marc Krickbaum, Assistant U.S. Attorney, U.S. ATTORNEY'S OFFICE, Des Moines, IA; Richard E. Rothrock, Assistant U.S. Attorney, U.S. ATTORNEY'S OFFICE, Council Bluffs, IA.
For Nathan Wayne Smith, Defendant - Appellant: Bernard John Burns, III, Assistant Federal Public Defender, John P. Messina, Assistant Federal Public Defender, FEDERAL PUBLIC DEFENDER'S OFFICE, Southern District of Iowa, Des Moines, IA.
Nathan Wayne Smith, Defendant - Appellant, Pro se, Leavenworth, KS.
Before BENTON, MELLOY, and SHEPHERD, Circuit Judges.
BENTON, Circuit Judge.
A jury convicted Nathan Wayne Smith of bank robbery in violation of 18 U.S.C. § 2113(a). He appeals, claiming the district court committed constitutional error by allowing the jury to view a replay of video exhibits outside the presence of the defendant, and without notifying defense counsel. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.
At about 9:30 am one June morning, a man entered a bank in Hamburg, Iowa. He wore a white visor, lightly tinted sunglasses, a gray or white baggy t-shirt, and dark baggy pants with black-and-white tennis shoes. He pushed a plastic bag at the teller and told her to " fill it up." Cameras recorded the robbery. A witness saw an early-90s Cadillac speeding away from the area of the bank. It had a dark green exterior and a light-colored vinyl top. The bank's outside ATM camera twice recorded a vehicle with this description.
Smith lived in Lexington, Missouri, a three-hour drive from Hamburg. He owned a dark green 1995 Cadillac with a light-colored vinyl top. It had an ignition interlock device, which, three-and-a-half hours after the robbery, was serviced in Missouri. The device showed that the car ran continuously from 6:30 am until 11:17 am, then again for shorter periods before 1:00 pm that day--the only time the car ran this long between February and July that year. Smith paid $175 cash for the service--$150.30 more than required by his lease.
Minutes after the service, an officer stopped Smith in the Cadillac for a registration violation. The officer's camera showed Smith wearing a light gray t-shirt. On the seat next to him were lightly tinted gold-rimmed sunglasses. Smith told the officer he was currently unemployed. The day after the robbery, Smith paid $1,475 cash for a car, without test-driving it. Seven days after the robbery, two bank tellers,
viewing a six-person photo lineup, independently identified Smith as the robber. Days later, police searched his home, seizing a pair of black-and-white tennis shoes and a light colored T-shirt, like the robber's. They also found his Cadillac under a car cover with the license plates removed.
At issue are four video exhibits entered without objection and shown to the jury during trial. As the jury prepared to deliberate, the court told counsel: " All of the exhibits will go back. The videos, if the jury wishes to see them, we'll play them for them in the courtroom. Please make sure someone other than one of the attorneys is here to play those for us if we need that done."
During deliberation, the jury requested to view the four videos. The equipment to play them was in the courtroom. The jury came back to the courtroom. The judge and the court reporter were there. A staff member of the U.S. Attorney's office--who had played the videos at trial--played them for the jury.
THE COURT: Take your seats.
JUROR [#1]: Are we able to look at the ...