U.S. v. Neill

• Decision Date: 26 January 1999
• Docket Number: No. 97-30383,97-30383
• Citation: 166 F.3d 943
• Parties: 99 Cal. Daily Op. Serv. 705, 98 Daily Journal D.A.R. 889 UNITED STATES of America, Plaintiff-Appellee, v. David Brian NEILL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 943

166 F.3d 943

99 Cal. Daily Op. Serv. 705, 98 Daily Journal

D.A.R. 889

UNITED STATES of America, Plaintiff-Appellee, v. David Brian NEILL, Defendant-Appellant.

No. 97-30383.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Nov. 6, 1998.

Opinion Filed Dec. 2, 1998.

Opinion Withdrawn Jan. 26, 1999.

Decided Jan. 26, 1999.

Howard Clyman, Lake Oswego, Oregon, for the defendant-appellant.

Michael W. Mosman, Assistant United States Attorney, Portland, Oregon, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Oregon; Helen J. Frye, District Judge, Presiding D.C. No. CR-97-00169-HJF.

Before: THOMPSON and TROTT, Circuit Judges, and RHOADES, ^* District Judge.

ORDER

The Opinion filed in this case on December 2, 1998, is hereby WITHDRAWN. An Opinion of this appeal is filed with this order.

OPINION

TROTT, Circuit Judge:

I. Overview

David Brian Neill ("Neill") appeals his conviction by a jury and sentence for two counts of bank robbery. On appeal, Neill argues that the district court erred in (1) denying his motion in limine to exclude from evidence reference to the work release center where Neill had been housed, (2) denying his motions for acquittal, (3) granting the government's motion to amend the indictment, and (4) adjusting his sentence upward four levels for use of a dangerous weapon. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm both the sentence and the conviction.

II. Background

On May 14, 1997, Neill was indicted for two counts of bank robbery in violation of 18 U.S.C. § 2113(a). Count one charged Neill and his accomplice Dewayne Christiansen ("Christiansen") with robbing the Scio City Wells Fargo Bank on April 14, 1997. Count two charged them with robbing the Salem City Bank of Salem on April 4, 1997.

Both Neill and Christiansen had prior criminal records and at the time of the robberies were housed at the Marion County Work Release Center ("Work Release Center"). Before trial, Neill submitted a motion in limine asking the court to preclude any testimonial reference to the fact that Neill was housed at the Work Release Center. That motion was denied, and Neill was granted a continuing objection to each mention of the Work Release Center.

Twice during the trial, once at the end of the prosecution's case and once at the end of all the evidence, Neill moved for judgment of acquittal under Rule 29 of the Federal Rules of Criminal Procedure. Both motions were denied.

After the case was submitted to the jury, the jury sent a written question to the judge. That question pointed out a previously undiscovered error in the indictment. Count two of the indictment mistakenly stated that the money from the Bank of Salem was in the custody of the Wells Fargo Bank. The money stolen from the Bank of Salem was actually in the custody of the Bank of Salem. The judge raised this issue with the parties, and the United States moved to amend the indictment to conform to the facts. Neill objected and renewed his motion for acquittal on count two. The court denied Neill's motion and granted the United States's motion to amend the indictment.

The jury returned a verdict of guilty on both counts.

At sentencing, the government requested a four-level increase in sentence under U.S.S.G. § 2B3.1(b)(2) (1997) for commission of a crime with a dangerous weapon. Neill objected, arguing that the pepper spray used in the robberies did not constitute a dangerous weapon. After a hearing, the district court found that pepper spray constituted a dangerous weapon, denied Neill's objection, and sentenced Neill to 240 months for count one and 84 months for count two, to be served consecutively.

III. Discussion

A. Reference to Work Release Center

Neill challenges the district court's decision denying his motion in limine, and allowing witnesses and counsel to refer to the fact that Neill was on work release at the time of the bank robberies. Neill argues that the probative value of his work release status was substantially outweighed by its prejudicial effect and admission therefore violated Rule 403 of the Federal Rules of Evidence.

The district court's decision balancing the probative value of evidence against its prejudicial effect is reviewed for an abuse of discretion. United States v. Cordoba, 104 F.3d 225, 229 (9th Cir.1997). "The district judge is given wide latitude in determining the admissibility of evidence under this standard." United States v. Easter, 66 F.3d 1018, 1021 (9th Cir.1995).

We have not previously addressed the admissability of proof that a defendant was on work release status. However, we have looked at closely analogous situations. Specifically, we recognized the risks associated with allowing into evidence the fact that the defendant was on parole or in a halfway house. See United States v. Manarite, 44 F.3d 1407, 1418 (9th Cir.1995) (noting that evidence that defendant was on parole "should be considered evidence of other crimes for purposes of Rule 404(b)"); United States v. Sims, 617 F.2d 1371, 1378 (9th Cir.1980) (discussing the admissibility of the defendant's failure to return to a halfway house and holding that halfway house status is evidence of prior bad acts but that in that case admission was not prejudicial error); United States v. Butcher, 557 F.2d 666, 670 (9th Cir.1977) (discussing the risks of allowing parole officers to testify in criminal trials). Like admission of a parole officer's testimony or evidence that the defendant was in a halfway house, reference to the Work Release Center indirectly allowed into evidence the damaging fact that Neill had been convicted of a prior crime.

The United States argues that the evidence of work release was relevant because it showed that Christiansen and Neill knew each other, that Neill had checked out of the Work Release Center during the time in which the crime occurred and that when Neill returned to the Work Release Center that night he had money to pay off a fine he owed to the Work Release Center.

Neill admits that the records of the Work Release Center are relevant but argues as he did to the district court that the prejudice from admitting reference to the Work Release Center should at least have been minimized by calling the Work Release Center a "Residential Program." We agree. The facts that Neill knew Christiansen, that Neill was not at home during commission of the crimes, and had money to repay debts after the crimes could have been established while avoiding prejudicial reference to the Work Release Center by calling it a different name.

The government argues that it would have been difficult for witnesses to remember to refer to the Work Release Center as a residential program when testifying. This argument is wholly without merit. Although this may have constituted a slight burden upon some witness, that burden is clearly outweighed by the prejudicial effect of prior convictions. Even recognizing the district court's discretion, the decision to admit evidence that suggests prior criminal acts without any real probative value constitutes error. The prejudice associated with prior crimes substantially outweighed the witnesses's convenience in testifying. Therefore, we hold that the district court erred in allowing in testimony concerning Neill's work release status and in refusing to reduce the prejudice by instructing witnesses to refer to the Work Release Center as a Residential Program. Precedent for tailoring of terms to avoid a more prejudicial term exists and should have been adopted in this case. See United States v. Abel, 469 U.S. 45, 48, 105 S.Ct. 465, 83 L.Ed.2d 450 (1984) (allowing the court to require parties refer to "Aryan Brotherhood" as a "secret type of prison organization").

However, in this case, the error was harmless. The evidence connecting Neill to both bank robberies was overwhelming. In addition to inculpatory circumstantial evidence regarding cars, clothing and a hat used in the crimes and linked to the defendant, his confederate in both crimes, Christiansen, identified Neill as his partner. At the request of the F.B.I. Christiansen also placed a telephone call to Neill before Neill was in custody. The conversation was recorded, and the tape was played to the jury. On the tape, Christiansen told Neill that he had cased the target of their next bank robbery and was ready to proceed. Neill told Christiansen not to tell anyone of the crimes, because talking was not "good practice."

In addition to Christiansen's testimony, the prosecution introduced the testimony of Chrystal Vaughn. Vaughn was a friend of Neill and Christiansen's and assisted in the first robbery. Vaughn testified that she drove Neill's car to purchase pepper spray for him, wiped fingerprints off of the stolen get-away car, and received three hundred dollars for her efforts. She also produced a letter she received from Neill before trial, which offered to reward her if she would alter her grand jury testimony so that the evidence would not be "enough for a guilty verdict." This letter was admitted into evidence at trial.

Moreover, the prosecution also offered the testimony of Suzanne Abbot, who assisted Neill and Christiansen in the second robbery. Abbott testified that like Vaughn, she had purchased pepper spray for Neil, and knowingly drove the get-away car. Vaughn also testified that she received money for her part in the second robbery, and paid Vaughn for her part in the first robbery. Abbott received a letter from Neill asking her to fabricate an alibi for him to corroborate the bogus alibi he told the F.B.I.

At trial, Neill's previous crimes were not discussed, and the fact that Neill had prior convictions was not mentioned. Moreover, the district court gave instruction to the jurors during voir dire in order to eliminate any prejudice. As part of the jury voir dire, the district court told the jury that there would be evidence that Neill had...