Case 4:09-cr-00188-RP-RAW Document 59 Filed 04/21/10 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF IOWA
CENTRAL DIVISION

*
UNITED STATES OF AMERICA, *
* 4:09-cr-00188
Plaintiff, *
*
v. *
*
JASON LEE BOWERS, *
* ORDER
Defendant. *
*

Before the Court is a Motion for Judgment of Acquittal and for New Trial filed by Jason

Lee Bowers (“Bowers”) on March 11, 2010.1 Clerk’s No. 56. The Government filed a

resistance on March 29, 2010. Clerk’s No. 58. The matter is fully submitted.

I. PROCEDURAL BACKGROUND

On November 18, 2009, a grand jury returned an indictment charging Defendant with

four counts of armed bank robbery, in violation of 18 U.S.C. § 2113, and four corresponding

counts of use of a firearm during or in furtherance of a crime of violence, in violation of 18

U.S.C. § 924(c). Clerk’s No. 19. More specifically, Count One alleges that Defendant robbed

the South Story Bank in Slater, Iowa on October 9, 2009, and Count Two alleges that he used a

shotgun during and in furtherance of this robbery. Id. Similarly, Count Three alleges that

Defendant robbed Farmers & Merchants State Bank in St. Charles, Iowa on October 16, 2009,

and Court Four alleges that he used a revolver during and in furtherance of this robbery. Id.

1
Despite the fact that Defendant entitled his Motion as a “Motion for Judgment of
Acquittal and for a New Trial,” Defendant failed to both request and substantively argue for a
judgment of acquittal in his Motion and in his supporting brief. Accordingly, and in light of the
Court’s ultimate determination about the weight of the evidence in this case, the Court will not
construe Defendant’s Motion as including a Rule 29 challenge.
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Likewise, Count Five alleges that Defendant robbed Peoples Trust & Savings Bank in Rippey,

Iowa on October 17, 2009, and Count Six alleges that he carried a revolver during and in

furtherance of this robbery. Id. Finally, Count Seven alleges that Defendant robbed First Trust

Savings Bank in Oxford, Iowa on October 21, 2009, and Count Eight alleges that he carried a

revolver during and in furtherance of this robbery. Id. Defendant elected to stand trial on these

charges, and on March 10, 2010, a jury returned a guilty verdict against him on each of the eight

counts. Clerk’s No. 48.

In his Motion, Defendant requests that the Court grant him a new trial on Counts Four,

Six, and Eight because “[t]he jury’s verdict was against the weight of evidence.” Def.’s Mot. ¶

3. According to Defendant, “[t]he evidence supported [Defendant’s] claim that the revolver he

used in the last three bank robberies was not a real firearm, but a cap gun.”2 Id. The

Government counters, arguing that in light of the bullet fragments found at one of the banks, the

discovery of a live round in a getaway vehicle Defendant stole, and Defendant’s own confession,

the evidence heavily supports the verdicts. Pl.’s Resistance at 2-3.

II. LAW AND ANALYSIS

Federal Rule of Criminal Procedure 33 provides: “Upon the defendant’s motion, the

court may vacate any judgment and grant a new trial if the interest of justice so requires.” This

2
In his supporting brief, Defendant provides no specific arguments as to how the verdict
is against the weight of evidence or how the evidence indicates that Defendant carried a cap gun,
stating only: “While the Court found at trial that the standard for granting judgment of acquittal
was not met in his case, [Defendant] asks the Court, having heard all the evidence at trial, to find
that the jury’s verdicts on counts 4, 6 and 8 were against the weight of the evidence, and to order
a new trial.” Def.’s Mot. at 2. Although the Court is familiar with the evidence in this case, the
Court urges defense counsel to present more nuanced arguments in the future because the Court
generally cannot know a case as well as the attorneys who are trying it.

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rule enables the Court to grant a new trial if “the evidence weighs so heavily against the verdict

that a miscarriage of justice may have occurred.” United States v. Starr, 533 F.3d 985, 999 (8th

Cir. 2008) (internal quotations and citations omitted). In making this determination, the Court

“is permitted to ‘weigh the evidence, disbelieve witnesses, and grant a new trial even where

there is substantial evidence to sustain the verdict.’” United States v. McClellon, 578 F.3d 846,

857 (8th Cir. 2009) (quoting Starr, 533 F.3d at 999). Moreover, the Court is granted broad

discretion in passing upon motions for new trial, and its decision is subject to reversal only for a

clear abuse of discretion. United States v. Bass, 478 F.3d 948, 951 (8th Cir. 2007) (“A district

court’s ‘determination that a new trial should be granted on the ground that the verdict is against

the weight of the evidence is entitled to great deference and is reversible only upon a strong

showing of abuse.’”) (quoting King v. Davis, 980 F.2d 1236, 1237 (8th Cir. 1992)). The Eighth

Circuit has, however, repeatedly cautioned that district courts “must exercise the Rule 33

authority sparingly and with caution.” United States v. Campos, 306 F.3d 577, 579 (8th Cir.

2002) (internal quotations and citations omitted).

In order to establish Counts Four, Six, and Eight, the Government was required to prove

that Defendant carried a real firearm, that is, a “weapon (including a starter gun) which will or is

designed to or may readily be converted to expel a projectile by the action of an explosive,” not a

nonfunctional replica or a toy gun. 18 U.S.C. § 921(3)(A); see also United States v. Garcia-

Hernandez, 530 F.3d 657, 662-63 (8th Cir. 2008) (discussing whether sufficient evidence existed

for a jury to find that a firearm was real and not “a toy gun”). The Government may rely on all

the evidence presented at trial to establish this element of the offense and is not required to

actually admit the weapon to sustain a conviction. See Garcia-Hernandez, 530 F.3d at 662

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(“However, ‘proof that a defendant possessed a firearm may be established solely by eyewitness

testimony where the gun is not recovered or introduced at trial.’” (quoting United States v.

Anderson, 78 F.3d 420, 423 (8th Cir. 1996)).

Although this is a close case, the Court believes the Government presented sufficient

evidence to support the jury’s verdicts that Defendant carried a real revolver during the St.

Charles, Rippey, and Oxford bank robberies. Defendant confessed to robbing all four banks, and

further admitted that he robbed the St. Charles, Rippey, and Oxford banks with a “revolver.” Ex.

146. Defendant also admitted that he “accidentally hit the trigger as [he] was getting ready to

leave” the Oxford Bank, thereby causing the “gun [to go] off” and prompting him to “apologize”

before he left the bank. Id. Additionally, Defendant stated: “The whole ride home I thought

about what if a ricochet would [have] hit someone.” Id.

Defendant’s account of the Oxford bank robbery, as well as the remaining bank

robberies, is generally supported by a majority of the remaining evidence. Several Oxford bank

employees testified that they heard a pop, or what sounded similar to a gun discharging, as

Defendant left the bank. March 9, 2010 Tr.3 at 85 (D.Z.4 testifying: “Q. Okay. Did you hear

him leave? A. I heard a pop.”), 99 (P.B. testifying: “Q. Okay. What happened next? A. After

that, all of a sudden I heard a shot and I screamed and I heard a comment of, ‘Oh, shit. Sorry.’”),

109 (similar), 117 (similar), 126 (similar). Additionally, FBI Special Agent Thomas Reinwart

(“Agent Reinwart”) testified that he found a depression in the floor of the Oxford bank and metal

3
All transcript references refer to the daily unedited RealTime transcript provided to the
Court by the reporter.
4
The Court will only refer to the victims of the robberies by their initials, in order to
protect their privacy.

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pieces, appearing to be bullet fragments, under a nearby mat, which suggested that “the bullet

when fired had skipped off of the tile under the mat and landed and contained itself underneath

the mat.” March 10, 2010 Tr. at 52-55. Likewise, FBI Special Agent Atwood testified that,

based upon his extensive experience as a firearms instructor, he thought the metal pieces were

fragments from a bullet. Id. at 111. Moreover, the Government found an unspent bullet in the

vehicle Defendant stole from the Oxford bank, which did not belong to the owner of the car.

March 9, 2010 Tr. at 133. Finally, the numerous video recordings of the various bank robberies

and the testimony of those present at the time of the robberies all indicate that Defendant was

carrying what appeared to be a silver revolver.

Despite this impressive array of evidence, the Court still has some concerns about the

overall weight of the evidence in this case. John Webb (“Webb”) of the FBI’s

Firearms/Toolmarks Unit examined the metal fragments taken from under the mat of the Oxford

bank and concluded that they “are not consistent with bullet fragments and bear no marks of

value for comparison purposes.” Ex. 172. His conclusion is consistent with the seemingly high

improbability that all the fragments from a shattered bullet would come to rest near each other,

let alone under a mat, without causing any damage to either the mat or the floor under it. March

10, 2010 Tr. at 72-81 (Reinwart testifying, amongst other things, that he only found fragments

under the mat even though bullet fragments tend to scatter). Assuming the Court credits the

most qualified firearms expert in this case, the Government’s ability to prove Defendant’s

revolver was real is tenuous, especially in light of the extremely realistic replica revolver he

admitted into evidence. Def.’s Ex. C. The Government did not find any other physical evidence

at the Oxford bank to indicate that Defendant’s revolver discharged a round, despite the noise it

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made. Indeed, one of the Oxford bank employees testified that he initially concluded Defendant

had fired a blank because of the lack of resulting damage to the bank.5 March 9, 2010 Tr. at 134

(“Q. Thank you. Ms. Scorpiniti asked you a number of questions about the statement you made

repeatedly in your 911 calls saying that it must have been a–it must have been a blank, he must

have been shooting blanks; is that right? A. Correct. Yes. Q. And the reason being that there

weren’t any slugs or indentations or holes left in the bank as a result of the gunshot? A. That’s

what I initially thought, yes.”). Additionally, no individual present during the St. Charles,

Rippey, and Oxford robberies were familiar enough with firearms to discern whether

Defendant’s revolver was real, and many of them described it and the sound it made as similar to

that of a toy or cap gun. See March 9, 2010 Tr. at 122 (“Q. Sometime shortly after this incident

you spoke with special agent David McCracken of the Federal Bureau of Investigation? A. Uh-

huh. Q. And you told him that the gunshot was really loud and sounded like a cap gun? A. I’ve

never actually heard a real gun fire, so– Q. Is that what you told him? A. Yeah.”); 135 (“Q.

And it didn’t sound like a real gun? A. Yeah. Yes. Q. Is there any reason it could not have

been a cap gun? A. Is there any– No, it could have been.”). Finally, Defendant seemingly lied

in his confession by claiming he acted alone, which tends to erode the credibility of his

remaining admissions. March 10, 2010 Tr. at 145 (“Q. And he insisted that he never got any

help from anybody? A. Yes, he did. Q. And you didn’t believe that? A. No, I didn’t. Q.

Because you knew that there was evidence to prove that he was exaggerating his role? A.

Yes.”). Nevertheless, the Court cannot explain away the live round found in the vehicle

5
The bank employee suggested that he changed his opinion after the FBI informed him
that bullet fragments were retrieved from under the mat. March 9, 2010 Tr. at 134.

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Defendant stole or Defendant’s subsequent concern about the safety of others in the Bank, and

accordingly, finds that the weight of the evidence supports the jury’s verdicts.

III. CONCLUSION

For the reasons discussed above, Defendant’s Motion for Judgment of Acquittal and for

New Trial (Clerk’s No. 56) is DENIED.

IT IS SO ORDERED.

Dated this ___21st___ day of April, 2010.

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