Bowers: Evidence "close" but sufficient

In U.S. v. Bowers, No. 14-11585 (January 22, 2016), the Court affirmed the convictions for eight Hobbs Act violations and eight counts of carrying, using a firearm in violation of 18 U.S.C. § 924(c), and a sentence of 332 months. Bowers had filed an untimely motion for severance of the counts of the Indictment. Reviewing this issue for plain error on account of the untimeliness (and finding that waiver did not apply under newly-amended Fed. R. Crim. P. 12), the Court found no plain error. The Court dismissed as “speculation” Bowers’ argument that the jury may have cumulated evidence from joined counts. The Court noted that to the contrary the relatedness of the robberies permitted the jury to use identity evidence from other counts to determine the robber’s identity. Though recognizing that the sufficiency of the evidence challenge presented a “close case,” the Court found that the common modus operandi of the robberies and the totality of the identity evidence sufficed to convict Bowers. The Court recognized that a scientific inference from DNA evidence might have been problematic, but concluded that the additional identity evidence and the modus operandi evidence made an inference based on DNA “permissible.” The Court rejected Bowers’ challenges to his sentence, including his claim that the sentence was cruel and unusual under the Eighth Amendment. The Court noted that in Harmelin v. Michigan, the Supreme Court rejected an Eighth Amendment challenge to a sentence of life without parole for possession of cocaine.