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The Fourth Circuit issued a published opinion in United States v. Bonner affirming a decision by Judge Schroeder (MDNC) that overturned Calvin Bonner’s conviction for armed robbery because the government presented insufficient evidence. The opinion by Judge Gregory (joined by Judge Wynn and Judge Diaz) contains an extensive discussion of the limitations of inferences that may be drawn from certain DNA evidence presented by the government.

Two masked gunmen, one wearing a Yankees hat, robbed a Subway. The Yankees hat was later found nearby. Forensic examination revealed multiple DNA matches. The “predominant” profile matched was Bonner. This DNA evidence, along with other circumstantial evidence, formed part of the government’s case against Bonner. The government argued that the jury could reasonably infer that Bonner was wearing the hat on the night of the robbery, but Judge Gregory concludes that “[a]ny assumption that Bonner was the last wearer is an impermissible inference by the jury.”

Looking forward, this could be the end of the line for the government’s case. The Supreme Court does not typically decide fact-specific cases like this. The government may seek rehearing en banc, though obtaining rehearing will be difficult because the decision is unanimous and all three judges on the panel are active Fourth Circuit judges.

Denial of rehearing is not, however, a foregone conclusion. A case relevant to any prognostication is United States v. Moye, 454 F.3d 390 (4th Cir. 2006) (en banc).  In Moye, the Fourth Circuit sitting en banc reached the opposite outcome from a panel opinion written by Judge Gregory that reversed a conviction for insufficient evidence. In Moye, however, there was a dissent from the panel opinion, and the panel majority was reversing rather than affirming the district court’s judgment. Interestingly, Judge Duncan, who joined Judge Gregory’s panel opinion in Moye, voted for the opposite outcome sitting en banc than the outcome she voted for on the panel. See United States v. Moye, 422 F.3d 207 (4th Cir. 2005) (vacated by the grant of rehearing).

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