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United States v. Lomas

United States Court of Appeals, Eighth Circuit

June 27, 2016

United States of America, Plaintiff- Appellee
Adrian Romal Lomas, Defendant-Appellant

          Submitted: April 14, 2016

         Appeal from United States District Court for the Southern District of Iowa - Davenport

          Before RILEY, Chief Judge, WOLLMAN and MURPHY, Circuit Judges.

          WOLLMAN, Circuit Judge.

         A jury found Adrian Romal Lomas guilty of bank robbery, in violation of 18 U.S.C. § 2113(a), and was sentenced by the district court[1] to 240 months' imprisonment. On appeal, Lomas challenges several of the district court's evidentiary rulings, the court's denial of his motion for a mistrial, and the court's sentence. We affirm.

         On June 6, 2014, Lomas and G.Y., a fifteen-year-old juvenile, robbed a branch of the Family Credit Union in Davenport, Iowa. Lomas, wearing sunglasses, a Chicago Bulls baseball cap, a bandana, and gloves, approached the teller on duty, displayed a pistol tucked into the front waistband of his pants, and demanded "all the money" in the teller drawer. G.Y., wearing a hooded sweatshirt, a bandana, and gloves, stood behind Lomas at the teller counter and passed Lomas a backpack into which Lomas placed the $4, 075 that the teller handed over from her drawer. Several surveillance cameras inside the credit union recorded the robbery.

         Lomas and G.Y. ran out of the credit union and down the street, where they jumped into a light blue Ford Windstar minivan that was waiting for them with its sliding door open. Natasha Havercamp, who happened to be driving past the area at the time, observed Lomas and G.Y., both with bandanas still obscuring their faces, as they ran to the minivan and leapt inside. Havercamp followed the minivan a short distance, noted the vehicle's license plate number, and called the Davenport police department to report the suspicious activity. At about the same time, the Davenport police received a call that the credit union had been robbed. Believing the two incidents were likely related, the police ran the license plate number provided by Havercamp and learned that the minivan was registered to Danielle Levetzow at an address on LeClaire Street in Davenport. Officers proceeded to LeClaire Street, but the minivan was not there. An officer watching the residence from a nearby alley was approached by one of Levetzow's neighbors, who agreed to notify police when the minivan returned.

         Levetzow, Lomas, and Levetzow's two young children returned to LeClaire Street in the minivan later that afternoon; Levetzow's neighbor called the police; and officers quickly arrived to secure the area and maintain surveillance of the residence while a search warrant was obtained. Levetzow and the children soon left the house, and police arrested Levetzow and detained the children until Levetzow's mother, Cheryl Levetzow (Cheryl), arrived. Although officers continued to watch the residence, when they eventually executed the search warrant, Lomas was not inside the house. One of the officers had earlier seen an individual walking away from the general area, but the officer did not recognize that individual as Lomas. Only after execution of the search warrant revealed an empty house did officers realize that it was Lomas who had walked away. The police seized several items from the residence and impounded Levetzow's minivan.

         In the meantime, Levetzow was taken to the police station and charged with robbery. At the station, Detectives Tim Murphy and Bill Thomas, as well as Sergeant Kevin Smull, interviewed Levetzow about the robbery. Murphy and Smull testified that Levetzow initially denied any knowledge of the robbery and claimed that the $700 in cash she had been carrying was money for rent. After the officers repeatedly accused her of lying, however, she admitted that she was the getaway driver for the credit union robbery. Levetzow revealed details about the robbery, including a description of the clothing worn by the two robbers, whom she identified as Lomas and a man she had just met named "Emanuel." She told the officers that the backpack used in the robbery had been thrown into the river. After the interview, Levetzow was bailed out of jail by Cheryl, who then drove Levetzow and her children back to the LeClaire Street residence. Cheryl testified that she had obtained the bail money from a grocery bag containing $2, 500 in cash from the robbery that Levetzow had stashed in a bathroom cabinet at Cheryl's house earlier that day. When the group arrived at the LeClaire Street residence, they found Lomas asleep on the couch.

         Although the police had obtained a warrant to arrest Lomas for the robbery, they were unable to locate him, and so on June 11 they obtained a warrant to track the location of Lomas's cellular telephone, and, after receiving data from his service provider, they learned that Lomas's cell phone was "pinging" near the airport in Moline, Illinois. Officers were also aware that Levetzow had retrieved her minivan from the police impound lot, so they began searching for it in the area near the airport. The police eventually discovered the minivan in a motel parking lot and learned which room Levetzow had rented. While officers were preparing to approach, Lomas exited the motel room and was arrested. Inside the room, officers found Levetzow; G.Y.; and Levetzow's three children, including her teenage daughter, A.S. The police arrested G.Y., detained Levetzow, and obtained Levetzow's consent to search the motel room, where they seized cell phones belonging to Lomas, G.Y., and A.S. Officers obtained a warrant to search Lomas's cell phone and learned that text messages seeking to borrow a "tool" or a "unit" had been sent from the phone to several telephone numbers in the days prior to the robbery.

         Two days after Lomas and G.Y. were arrested at the motel, Detective Scott Lansing and another officer interviewed Levetzow again, at which time she admitted that the backpack from the robbery had been hidden and not thrown into the river. She then led the two officers to an alley and pointed to a large bush, from which Lansing recovered and then opened the backpack, which contained the robbers' clothing, along with an imitation firearm-a BB gun that had been altered to appear real.

         G.Y., who had already pleaded guilty to the credit union robbery and was incarcerated at the Iowa State Reformatory, testified that he and Lomas committed the robbery and that Levetzow drove the getaway vehicle. He further stated that he had obtained the BB gun that Lomas had carried in the front waistband of his pants and displayed to the teller during the robbery. He also identified the backpack and its contents as items he and Lomas had used in the robbery.

         Levetzow's daughter A.S. testified that she overheard Lomas and Levetzow discussing a plan to rob a bank. She also overheard Lomas describe the plan to G.Y. and request G.Y.'s help locating a firearm, which Lomas referred to as a "tool." A.S. also testified that Lomas, Levetzow, and G.Y. had discussed the robbery in her presence in the motel room, including a discussion of "where the money was."

         The district court rejected Lomas's pretrial objection to the government's introduction of evidence that on April 30, 2014, some five weeks before the credit union robbery, Lomas had discarded a firearm behind the wheel of a parked vehicle and that police had recovered the firearm after they arrested Lomas. The court agreed with the government that this evidence was "relevant and probative" to "explain[] why [Lomas] was looking for a gun in the days . . . leading up to the robbery." Sally Cerra, whose kitchen window faced the alley, testified that she had seen two men running in an alley behind her residence on April 30 and that one of the men, later identified as Lomas, had removed a firearm from the front waistband of his pants and had placed it on the ground behind the wheel of a parked vehicle. Sergeant Smull testified that he was responding to a call of "shots fired" near a high school on April 30 when he noticed Lomas and another man standing in an alley and detained them both. Smull stated that Cerra informed him about what she had seen and that he then found a .45-caliber firearm beneath the vehicle. Smull also testified that he had observed Levetzow driving the light blue minivan in the area while these events unfolded. Lomas moved for a mistrial, which the district court denied.

         Following the entry of the verdict, a Presentence Investigation Report (PSR) was prepared. It recommended a base offense level of 20 for the robbery, U.S. Sentencing Guidelines Manual (U.S.S.G. or Guidelines) § 2B3.1; a 2-level enhancement for taking property from a financial institution, § 2B3.1(b)(1); a 3-level enhancement for brandishing a dangerous weapon, § 2B3.1(b)(2)(E); a 2-level enhancement for acting as an organizer or leader, § 3B1.1(c); and a 2-level enhancement for using a minor in the offense, § 3B1.4, resulting in an adjusted offense level of 29. Because of Lomas's two prior felony convictions-a 1996 Iowa conviction for first-degree robbery and a 2010 Nebraska conviction for burglary-the PSR recommended that the § 4B1.1 ...

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