563 F.2d 1331 (9th Cir. 1977), 76-3162, United States v. Hearst

Docket Nº:76-3162, 77-1759.
Citation:563 F.2d 1331
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Patricia Campbell HEARST, Defendant-Appellant.
Case Date:November 02, 1977
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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563 F.2d 1331 (9th Cir. 1977)

UNITED STATES of America, Plaintiff-Appellee,

v.

Patricia Campbell HEARST, Defendant-Appellant.

Nos. 76-3162, 77-1759.

United States Court of Appeals, Ninth Circuit

November 2, 1977

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F. Lee Bailey and J. Albert Johnson, Boston, Mass., argued for defendant-appellant.

James L. Browning, Jr., U. S. Atty., San Francisco, Cal., argued for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of California.

Before BROWNING, TRASK and WALLACE, Circuit Judges.

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PER CURIAM:

Appellant was tried under a two-count indictment charging her with armed robbery of a San Francisco bank in violation of 18 U.S.C. §§ 2113(a), (d) and 924(c)(1). The government introduced photographs and testimony descriptive of appellant's role in the robbery. Appellant raised the defense of duress, contending her co-participants compelled her to engage in the criminal activity. The jury found appellant guilty. The district court sentenced her to seven years in prison on one count and two years on the other, the sentences to be served concurrently.

Appellant argues that the trial judge erred in admitting and excluding evidence and in ruling on appellant's privilege against self-incrimination. No novel issues are presented. We conclude on the basis of well established principles that no reversible error occurred and that the judgment must be affirmed.

I. Evidence of Subsequent Crimes

During its case-in-chief the government introduced evidence connecting appellant with criminal activity at a sporting goods store and with a kidnapping and theft. These incidents occurred in the Los Angeles area approximately one month after the San Francisco bank robbery. The evidence showed that appellant accompanied William and Emily Harris to Mel's Sporting Goods Store in Los Angeles, that the Harrises entered the store and left appellant outside in a truck, that a store clerk saw William Harris shoplifting and attempted to arrest him, and that appellant discharged an automatic rifle at the store, enabling Harris to escape. The evidence further showed that on the same day appellant and the Harrises stole a van and kidnapped its owner, Thomas Matthews. Matthews testified that during this incident the Harrises were outside the van and appellant had an opportunity to escape or give Matthews a message but did not do so.

Appellant objects to admission of this evidence on three grounds. She asserts the evidence was irrelevant for any purpose except the improper one of convincing the jury that appellant acted in accordance with a criminal disposition. She argues that even if the evidence were relevant to the issue of intent, as the district court held, the incidents were so dissimilar to the bank robbery that its probative value was minimal and outweighed by its prejudicial effect. Finally, appellant contends the court erred in permitting the introduction of this evidence during the government's case-in-chief.

Evidence of other criminal acts may be persuasive that the accused is by propensity a probable perpetrator of the crime charged. Nonetheless, it is excluded when offered for this purpose because it may unduly influence the jury and deny the accused a fair opportunity to defend against the particular charge. Michelson v. United States, 335 U.S. 469, 475-76, 69 S.Ct. 213, 93 L.Ed. 168 (1948).

Evidence of other criminal acts may be admitted for purposes other than proving criminal predisposition, however. It may be received, for example, to prove knowledge, motive, and intent. Fed.R.Evid. 404(b). Accord, United States v. Rocha, 553 F.2d 615, 616 (9th Cir. 1977); United States v. Burns, 529 F.2d 114, 118 (9th Cir. 1976); United States v. Marshall, 526 F.2d 1349, 1360 (9th Cir. 1975). The government contends that the evidence of appellant's criminal acts in Los Angeles a month after the bank robbery was relevant to the issue of appellant's intent when she participated in the San Francisco bank robbery, and to whether appellant was acting under duress. 1

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Appellant raised the defense of duress at trial and offered substantial evidence to support it. To convict appellant, therefore, the government was required to show appellant was not acting under duress when she participated in the San Francisco robbery. 2 The evidence of appellant's involvement in the Los Angeles activity was relevant to this issue because it tended to show appellant willingly engaged in other criminal activity with persons of the same group at a time not unduly remote.

Appellant correctly points out that though relevant, evidence of other criminal conduct by the accused should be excluded if its probative value is outweighed by its prejudicial impact upon the accused. Fed.R.Evid. 403. Accord, United States v. Satterfield, 548 F.2d 1341, 1346 (9th Cir. 1977); United States v. Grammer, 513 F.2d 673, 677 (9th Cir. 1975); Fernandez v. United States, 329 F.2d 899, 908 (9th Cir. 1964). This determination is largely a matter for the discretion of the district court. United States v. Rocha, supra; United States v. Riggins, 539 F.2d 682, 683 (9th Cir. 1976); United States v. Nichols, 534 F.2d 202, 204 (9th Cir. 1976). Appellant challenges the discretionary determination made by the district court in this instance.

Appellant points out that the Los Angeles offenses were not similar to the San Francisco robbery with which she was charged. Because the events were so dissimilar, she contends, they offer little insight into her state of mind during the robbery. But to justify admission of evidence of other crimes, the crimes must be "similar" to the offense charged only if it is the similarity of the crimes that underlies the relevance of the evidence. United States v. Riggins, supra, 539 F.2d at 683. 3 Here the relevance of the evidence did not depend on the similarity of the Los Angeles crimes to the bank robbery but on the circumstances surrounding the occurrence of the Los Angeles crimes, which indicated appellant had not acted under duress when she participated in the bank robbery. The tendency of the evidence regarding the Los Angeles crimes to prove appellant was not

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coerced when she participated in the San Francisco robbery is not diminished by the lack of similarity between the Los Angeles and San Francisco offenses.

Appellant also argues that the sequence of the San Francisco and Los Angeles events undermines the relevance of the latter to her state of mind during the San Francisco robbery. Absence of duress in the later Los Angeles incidents would not be probative of her state of mind during the San Francisco robbery, she contends, because the robbery itself made her an outlaw and a fugitive. This fact may have caused her to participate willingly in the Los Angeles events, she asserts, even if she were under duress during the earlier robbery.

Appellant's hypothesis does bear upon the probative value of the evidence, and it is an appropriate consideration in determining whether on balance the evidence should have been admitted. It is, however, only a hypothesis, and a highly speculative one. The mere assertion of this hypothesis does not so undermine the probative worth of the evidence of the Los Angeles incidents in establishing appellant's state of mind during the San Francisco robbery as to render admission of the evidence an abuse of discretion. The jury could well reject appellant's theory and conclude that if appellant had been forced to participate in the bank robbery against her will she would have refrained from criminal activity in Los Angeles or seized the opportunity to escape.

The trial judge was called upon to balance the need for the evidence in the search for the truth against the possibility that the jury would be prejudiced against appellant because the evidence revealed she had participated in other conduct that was criminal. The district court acted well within its discretion in admitting the evidence. Appellant's state of mind during the San Francisco robbery was the central issue in the case. State of mind is usually difficult to prove, and the evidence on the issue was sharply divided. The timing and other circumstances of the Los Angeles incidents made evidence of them highly probative on this critical issue. Though criminal, the incidents were not of a kind likely to inflame the jury. The prejudice to appellant arose primarily from the light the evidence cast on appellant's state of mind during the San Francisco robbery and not from the incidental circumstance that it revealed appellant's involvement in other criminal acts.

Appellant contends that even if evidence of the Los Angeles incidents were admissible, the district court erred in admitting it in the government's case-in-chief. The argument runs as follows. Bank robbery is a crime requiring a general rather than specific intent, United States v. Hartfield,513 F.2d 254, 259 (9th Cir. 1975), and the jury could infer the requisite intent from the commission of the act. United States v. Porter, 431 F.2d 7, 10 (9th Cir. 1970). Since evidence of other criminal acts was not required to enable the government to carry its burden of proving intent, it should not have been admitted as part of the government's case-in-chief. United States v. Adderly, 529 F.2d 1178, 1181 n. 1 (5th Cir. 1976), quoting Fallen v. United States, 220 F.2d 946, 948 (5th Cir. 1955); United States v. Ring, 513 F.2d 1001, 1007-09 (6th Cir. 1975). It was reversible error, appellant concludes, to admit to such prejudicial evidence when its only relevance was to rebut a defense of duress not yet raised. See United States v. Ring, supra; United States v. Fierson, 419 F.2d 1020, 1023 (7th Cir. 1969).

The government concedes it cannot present evidence that the accused committed other crimes to prove...

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