U.S. v. Hans
| Citation | 738 F.2d 88 |
| Decision Date | 19 June 1984 |
| Docket Number | No. 83-5447,83-5447 |
| Parties | 15 Fed. R. Evid. Serv. 1736 UNITED STATES of America, Appellee, v. Leslie William HANS, Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (3rd Circuit) |
J. Alan Johnson, U.S. Atty., Constance M. Bowden (argued), Asst. U.S. Atty., Pittsburgh, Pa., for appellee.
George E. Schumacher (argued), Federal Public Defender, Pittsburgh, Pa., for appellant.
Before HUNTER and BECKER, Circuit Judges, and HOFFMAN *, District Judge.
Following a jury trial in the United States District Court for the Western District of Pennsylvania, Leslie William Hans was convicted of bank robbery. The trial judge sentenced Hans to a total of 25 years imprisonment on the two counts. Hans appeals the conviction to this court, citing five supposed errors by the trial judge in admitting items of evidence, allowing testimony about Hans' possible connection with bank robberies in Michigan, and allowing the jury to inspect items during its deliberations that had not been introduced into evidence.
Although some of Hans' objections are without merit, we feel that the trial judge erred in allowing: (1) the jury to inspect certain items which had been talked about, but not introduced into evidence, (2) an F.B.I. agent to testify in a manner that implied that Hans had committed bank robberies in Detroit and (3) a witness to link Hans to alleged plans to commit future robberies. Because we feel that the first two errors prejudiced Hans' right to a fair trial, we reverse his conviction and remand for a new trial.
On October 28, 1980, three armed individuals, wearing halloween masks, windbreakers and gloves, robbed a branch of the Marine Bank in Erie, Pennsylvania, getting away with approximately $34,000. In November, acting on an informant's tip, the F.B.I. arrested Norman Bauman in Detroit, Michigan for the crime. With Bauman at the time of the arrest, but not themselves then arrested, were Pearl Grzybowski, Hans and Pat Barlow.
Almost all the physical evidence the government introduced against Hans resulted from Bauman's arrest. The F.B.I. obtained warrants to search both Bauman's apartment and a briefcase he was carrying at the time of the arrest. The briefcase contained a police scanner, $4,000 in $100 bills, as well as other items ultimately used as evidence in Hans' trial. Bauman had another $4,000 in cash on his person, as well as a notebook containing references to the Marine Bank in Erie. Following their search of Bauman's apartment, the F.B.I. seized a variety of items, some of them admitted into evidence against Hans, some not. Included in this seizure were the five windbreakers which were marked for identification, but never admitted into evidence.
Bauman himself was never tried; he apparently committed suicide sometime after his arrest. The government then proceeded to try Bauman's girl friend, Pearl Grzybowski, for the robbery. Grzybowski was convicted and sentenced to twenty-five years imprisonment for her part in the robbery. The sentencing judge held out a possibility of a reduction in sentence if she cooperated with the government and testified against the third person involved in the robbery. Almost three months after her sentencing, Grzybowski finally informed the F.B.I. that Hans was the third participant. Although her sentence had not yet been reduced at the time of the Hans trial, Grzybowski testified that she understood that her cooperation would result in a "substantial number of years" being taken off her sentence.
Based on information from Grzybowski, the government secured an indictment of Hans for violating 18 U.S.C. Secs. 2113(a) (bank robbery) and (d) (assault during the commission of a bank robbery). Hans had a three day jury trial in early November, 1981. Most of the physical evidence the government introduced against Hans had been seized from Bauman. Grzybowski's testimony provided the only direct evidence of Hans' involvement in the robbery. The government also introduced evidence to show that Hans had wired Grzybowski $1,000 for bail when she was first arrested.
The jury convicted Hans on both counts, and the judge sentenced Hans to 25 years in prison.
Before trial, Hans objected to the introduction into evidence against him of the items seized from Bauman. Introduced against Hans were the police scanner, the $4,000 in $100 denominations, and Bauman's notebook. Hans contended that these items were both irrelevant to the question of his guilt and highly prejudicial. The trial judge overruled all the objections except the ones directed against the introduction of a gun and several bullet-proof vests. The judge ruled the gun inadmissible because it was not clearly of the type carried by the robbers, and he ruled the vests inadmissible because there was no evidence that the robbers had worn vests.
Among the items the judge ruled admissible were the five windbreakers seized from Bauman's apartment. These were identified but never actually offered or admitted into evidence. During its deliberations, the jury asked to inspect the windbreakers. Hans objected to this, arguing that the trial was over and the prosecution had long rested its case. The judge overruled the objection and allowed the jurors to inspect the jackets.
Hans argues that everything seized from Bauman was irrelevant to the question of whether Hans participated in the robbery. He concedes that these items had some relevance to the degree that they corroborated Grzybowski's testimony, but he contends that this minimal relevance is far outweighed by the prejudicial effect on the jury. Hans argues that the trial judge misapplied Rule 403 of the Federal Rules of Evidence by ruling admissible items seized from Bauman.
The law in this circuit is clear: a trial judge has broad discretion to evaluate whether the probative value of relevant evidence "is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury." Fed.R.Evid. 403; see United States v. Clifford, 704 F.2d 86, 89 (3d Cir.1983). Absent a clear showing of abuse of discretion, appellate courts will not disturb a trial judge's ruling under Rule 403. United States v. Dalfonso, 707 F.2d 757, 762 (3d Cir.1983).
The district judge clearly did not abuse his discretion in allowing most of the evidence seized from Bauman to be introduced into evidence against Hans. Because these items tended to corroborate Grzybowski's testimony, they were relevant. The Federal Rules define "relevant evidence" as evidence with "any tendency to make the existence of any [material] fact .... more or less probable." Fed.R.Evid. 401 (emphasis added). Under this standard, everything seized from Bauman was relevant.
Moreover, it is clear from the record that the district judge evaluated all the proposed evidence to see whether it presented a danger of unfair prejudice to Hans. The judge ultimately excluded some evidence, such as the handgun and the bullet-proof vests, because of the danger of prejudice to Hans. Under these circumstances, we cannot say that the trial judge abused his discretion by admitting these other items into evidence.
At a pre-trial hearing, the district judge ruled that the windbreakers were admissible. Grzybowski testified at that hearing that, although they were similar to the ones the robbers wore, the windbreakers were in fact not the ones used in the robbery. During the trial itself, the windbreakers were marked for identification, but for some reason they were never actually introduced into evidence. Because they were not admitted into evidence, Hans' lawyer had no need to elicit testimony from Grzybowski that these windbreakers were different from the ones the robbers wore. Soon after the jury began deliberations, it sent a note asking to inspect the windbreakers. Over Hans' strenuous objections, the trial judge granted the request.
A jury is bound to decide a case purely on the law and the evidence, it is therefore error for a jury to rely on items not admitted into evidence to reach its verdict. Government of the Virgin Islands v. Joseph, 685 F.2d 857, 863-64 (3d Cir.1982). To be reversible, however, the error must be objected to in a timely fashion, and substantial rights must be affected. Fed.R.Crim.P. 52(a); United States v. Ong, 541 F.2d 331 (2d Cir.1976), cert. denied, 429 U.S. 1075, 97 S.Ct. 814, 50 L.Ed.2d 793 (1977).
In Joseph, the unadmitted evidence was given to the jury inadvertently, without an objection by defendant's lawyer. The court therefore had to apply a plain error standard in holding that the jury's use of the evidence had prejudiced Joseph's right to a fair trial. Because Hans' attorney made a timely objection to allowing the jury to inspect the windbreakers, we need not resort to a plain error analysis in this case.
In urging us to uphold the trial judge's ruling on this point, the government first argues that the judge committed no error. The government cites a number of cases, including Joseph, to support its contention that a trial judge commits error only if he allows the jury to examine unadmitted evidence which he previously had ruled inadmissible or on whose admissibility he has not ruled. This argument overlooks the clear language of Joseph: "the jury room must be kept free of evidence not received in the trial, and that its presence, if prejudicial, will vitiate the verdict." 685 F.2d at 863, quoting Dallago v. United States, 427 F.2d 546, 553 (D.C.Cir.1969). The error comes not from the inadmissibility of the evidence, but from the jury's reliance on evidence which had not properly been admitted.
The government also argues that the trial judge did not err because, in effect, he was permitting the government to...
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