707 F.2d 1013 (9th Cir. 1983), 81-1666, United States v. Abel

Docket Nº:81-1666.
Citation:707 F.2d 1013
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. John Clyde ABEL, Defendant-Appellant.
Case Date:May 20, 1983
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 1013

707 F.2d 1013 (9th Cir. 1983)

UNITED STATES of America, Plaintiff-Appellee,

v.

John Clyde ABEL, Defendant-Appellant.

No. 81-1666.

United States Court of Appeals, Ninth Circuit

May 20, 1983

Argued and Submitted Oct. 6, 1982.

As Amended June 6, 1983.

Page 1014

Darrell W. MacIntyre, Los Angeles, Cal., for defendant-appellant.

Yoland Barrera Gomez, Los Angeles, Cal., for plaintiff-appellee.

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

Before KENNEDY, TANG and FERGUSON, Circuit Judges.

FERGUSON, Circuit Judge:

In 1981 defendant John Abel was indicted for armed bank robbery, in violation of 18 U.S.C. Sec. 2113(a), (d). He was convicted by a jury and sentenced to a term of twenty-five years. He appeals the conviction on three grounds: first, that the district court improperly denied his motion to suppress evidence seized at the time of his arrest; second, that the court impaired his ability to present witnesses; and third, that the court improperly allowed the introduction of inflamatory references to a secret prison organization for purposes of impeachment. Because we agree that the district court abused its discretion in allowing the inflamatory secret prison organization references, we reverse the conviction and remand to the district court for a new trial.

FACTS

On September 8, 1981 the Bellflower Savings and Loan Association in Bellflower, California was robbed by four white males. A witness gave the FBI the license number of the getaway vehicle, a white Camaro, which was found to be registered to Anna Sainz.

That same day, several members of the Los Angeles County Sheriff's Office went to Sainz's home and interviewed her there. She informed the officers that she had loaned the car to John Abel that morning. Her housemate Ronald Gremard, Abel and another man left in the Camaro. Abel and Gremard later returned the car to the house and left again in Abel's Ford pickup truck; she expected both of them to return that evening. With Sainz's permission, the officers searched the house, finding a bank bag in one of the bedrooms. Several officers then waited inside the home, while others were stationed outside.

When Gremard and Abel arrived at the house in a Ford pickup, it was dark. Gremard entered the residence and was arrested there. Abel followed more slowly, putting on a shirt while walking toward the house. He was arrested before reaching the unlighted porch. The officers then seized some clothing from the seat of the pickup. Abel was taken to the police substation

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and searched there. The search revealed $434.50, including a bait bill from the Bellflower Savings and Loan, and eight silver dollars alleged to have been taken in the robbery.

Abel, Gremard, and Kurt Edward Ehle were indicted for the robbery. Gremard and Ehle both pled guilty, but Abel went to trial. Ehle agreed to testify for the government as part of his plea bargain, and did so. Defendant Abel was convicted and this appeal ensued.

I. DEFENDANT'S MOTION TO SUPPRESS

Abel assigns as error the trial court's denial of his motion to suppress the money, including a "bait bill," seized from his person after his arrest. The trial court found that probable cause existed for Abel's arrest and that the search of his pockets was lawful as incident to that arrest. We agree.

At the time that Abel alighted from the pickup truck and began walking toward Anna Sainz's front door, the officers had already interviewed Sainz and searched the residence. Sainz had told them that Gremard and Abel had returned to her house earlier in the white Camaro already identified as the getaway vehicle. At that time Gremard had left behind a flannel shirt which the officers found in an upstairs bedroom, wrapped around a white bank bag containing $149.95 in dimes, quarters and half dollars. Abel and Gremard had then left in Abel's Ford pickup, and Sainz expected them to return that evening to take her to dinner. Under these circumstances, the officers had probable cause to believe that the two men who drove up to Sainz's residence, in a truck matching her description, at the time she expected them to come had committed a felony earlier that day. See United States v. Bernard, 623 F.2d 551, 558-59 (9th Cir.1980), quoting Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964). The combination of poor lighting and the fact that Abel's face was obscured by the shirt he was donning may have made it impossible for the officers to visually identify him. However, they had sufficient cause to arrest him regardless.

Because Abel's arrest was valid, a search of his person was authorized. "A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification." United States v. Robinson, 414 U.S. 218, 235, 94 S.Ct. 467, 477, 38 L.Ed.2d 427 (1973). The search of Abel's pockets and wallet at the station was likewise valid. See United States v. Ziller, 623 F.2d 562, 563 (9th Cir.1980). The court therefore did not err in denying Abel's motion to suppress the evidence found in that search. 1

II. EXCLUSION OF TESTIMONY

As required by Fed.Rule of Crim.Proc. 12.1(a), Abel gave written notice of his intention to offer an alibi defense, which included his intention to call his employer Vito Spillone as an alibi witness. No other alibi witnesses were listed.

At trial, Abel sought to have the company bookkeeper, Linda Taylor, testify with regard to the business telephone records of Angie's Wholesale. The district court refused to allow Taylor to testify, ruling that since she was an alibi witness, prior notice to the government was required. Fed.R.Crim.P. 12.1(a).

Because we reverse the conviction on the ground of improper impeachment, we need not decide this issue. At the new trial, the government now has notice of the witness and the issue will not arise again.

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III. IMPEACHMENT BY ASSOCIATION

Kurt Ehle testified for the government that Abel had been one of the bank robbers. The defense called Robert Mills to impeach Ehle. Mills had been in prison with Ehle and Abel and had been friendly with both of them at various times. Mills testified that Ehle had told him that Abel was not in fact one of the robbers, but that he (Ehle) intended to identify him as such in order to obtain a shorter sentence for himself. The prosecution was permitted to cross-examine Mills on his alleged membership in a "secret type of prison organization" whose members would "lie to protect the [other] members." Mills denied membership in, or knowledge of, such an organization. 2

Abel's final allegation of error is, in essence, that the court allowed defense witness Mills to be impeached by association. We believe it to be a fundamental tenet of our criminal justice system that guilt or innocence, credibility or lack thereof, are personal, and cannot be established by evidence that a person merely belongs to a particular group,...

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