Criminal Practice – Duct Tape Fingerprint Not Enough to Convict

U.S. v. Strayhorn (Lawyers Weekly No. 14-01-0205, 21 pp.) (Wynn, J.) No. 12-4487, Feb. 26, 2014; USDC at Greensboro, N.C. (Eagles, J.) 4^th Cir.

Holding: In the prosecution of two brothers for robbery and attempted robbery of two North Carolina coin shops, a fingerprint of Janson Strayhorn on duct tape used to bind the owner of P&S Coins was insufficient to convict him of the P&S robbery, but his conviction of attempted robbery of All American Coins is affirmed; the 4^th Circuit also affirms Jimmy Strayhorn’s conviction of the P&S Coins robbery but remands for resentencing on a brandishing charge because the trial court failed to instruct the jury that they needed to find he had brandished a gun.

A review of our relevant cases reveals that in challenges to convictions involving fingerprints on movable objects, in the absence of evidence regarding when the fingerprints were made, the government must marshal sufficient additional incriminating evidence so as to allow a rational juror to find guilt beyond a reasonable doubt. Although the government may meet this burden with circumstantial evidence, that evidence must be sufficiently incriminating to support the conviction.

Here, it is undisputed that the fingerprint evidence against Janson Strayhorn as to counts one and two consists of one partial fingerprint on the duct tape used in the P&S Coins robbery. The duct tape is, without question, an easily movable object. And the government’s expert conceded that he had no way to determine when Janson’s fingerprint was imprinted on the tape and that the fingerprint could have been impressed even a year earlier.

The probative value of the fingerprint evidence here is thus highly questionable. The only other significant incriminating evidence the government offered is Janson’s “possession” of the Colt Peacemaker stolen from P&S and found in the Cadillac Janson was driving when arrested near All American Coins, but which belonged to Jimmy’s girlfriend. The gun was no longer recently stolen property by the time police stopped Janson, two months after the P&S robbery.  Janson cannot be convicted of involvement in the P&S robbery.

However, the record contains substantial evidence to support Janson’s All American coins-related convictions, based on recordings of phone calls between the brothers discussing their plans for Janson to rob All American in order to post bond for Jimmy.

We hold, as the government conceded, that Jimmy Strayhorn’s case must be remanded for resentencing in light of Alleyne v. U.S., 133 S. Ct. 2151 (2013). Because the brandishing increased the penalty to which he was subjected, it was an element that had to be found by the jury beyond a reasonable doubt.