U.S. v. Guerrero, s. 82-1775

• Decision Date: 07 June 1984
• Docket Number: Nos. 82-1775,s. 82-1775
• Citation: 756 F.2d 1342
• Parties: 18 Fed. R. Evid. Serv. 87 UNITED STATES of America, Plaintiff-Appellee, v. Inez Eaton GUERRERO, Patrick John O'Shea, Stephen Michael Kessler, Cynthia Walker and Donald Gene Booth, Defendants-Appellants. to 82-1776 and 83-3000 to 83-3002.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1342

756 F.2d 1342

18 Fed. R. Evid. Serv. 87

UNITED STATES of America, Plaintiff-Appellee, v. Inez Eaton GUERRERO, Patrick John O'Shea, Stephen Michael

Kessler, Cynthia Walker and Donald Gene Booth,

Defendants-Appellants.

Nos. 82-1775 to 82-1776 and 83-3000 to 83-3002.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 10, 1982.

Decided June 7, 1984.

Jack Wong, Asst. U.S. Atty., Charles H. Turner, U.S. Atty., Portland, Or., for plaintiff-appellee.

Stephen D. Krohn, Ronald H. Hoevet, Stephen F. Crew, Frank Noonan, Winfree & Noonan, Norman Sepenuk, James L. Collins, Portland, Or., for defendants-appellants.

Appeal from the United States District Court for the District of Oregon.

Before WRIGHT, CANBY and BOOCHEVER, Circuit Judges.

PER CURIAM:

Defendants appeal their convictions from a jury trial on charges of conspiracy to commit bank robbery, bank robbery, distribution of heroin, and receipt of money taken illegally from a bank.

I. Joint Trial and Severance

Where both multiple defendants and multiple offenses are involved, the propriety of joinder is governed by Fed.R.Crim.P. 8(b). United States v. Ford, 632 F.2d 1354, 1371 (9th Cir.1980), cert. denied, 450 U.S. 934, 101 S.Ct. 1399, 67 L.Ed.2d 369 (1981). Whether separate acts constituting separate offenses are within the same series as required for joinder under Rule 8(b) depends on the degree to which the acts are related. United States v. Satterfield, 548 F.2d 1341, 1344 (9th Cir.1977), cert. denied, 439 U.S. 840, 99 S.Ct. 128, 58 L.Ed.2d 138 (1978). Separate acts are related if they arise out of a "common plan, scheme, or conspiracy." United States v. Ford, 632 F.2d at 1372. As the conspiracy charged encompassed both the robbery and drug offenses, the joinder of these defendants and offenses was proper under the Rule.

Nor did the district court abuse its discretion in denying defendants' motions for severance under Fed.R.Crim.P. 14. The district court correctly concluded that a joint trial would not unduly prejudice any defendant. See United States v. McDonald, 576 F.2d 1350, 1355 (9th Cir.), cert. denied, 439 U.S. 830, 99 S.Ct. 105, 58 L.Ed.2d 124 (1978). Although some of the evidence adduced at trial related only to the guilt of one or more, but less than all of the defendants, defendants have not satisfactorily demonstrated why the jury could not reasonably have compartmentalized the evidence against each defendant in view of the careful instructions given by the trial judge. See United States v. Escalante, 637 F.2d 1197, 1201 (9th Cir.), cert. denied, 449 U.S. 856, 101 S.Ct. 154, 66 L.Ed.2d 71 (1980). As to defendant Walker's motion, we do not think that the disparity in proof was so great that it was an abuse of discretion to deny her motion for severance. See United States v. Brady, 579 F.2d 1121, 1128 (9th Cir.1978), cert. denied, 439 U.S. 1074, 99 S.Ct. 849, 59 L.Ed.2d 41 (1979).

II. Change of Venue

In determining whether to grant a motion for change of venue, the question is whether it is possible to select a fair and impartial jury. United States v. McDonald, 576 F.2d at 1354. We have reviewed the record of the voir dire examination and conclude that the district court did not abuse its discretion in refusing to grant a change of venue. See United States v. Flores-Elias, 650 F.2d 1149, 1150 (9th Cir.), cert. denied, 454 U.S. 904, 102 S.Ct. 412, 70 L.Ed.2d 223 (1981). The fact that pretrial publicity had been great and that many of the prospective jurors were acquainted with some of the facts of the case is insufficient to require a change of venue so long as the jurors are able to set to one side any impressions gained from the publicity. Irvin v. Dowd, 366 U.S. 717, 723, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751 (1961); Silverthorne v. United States, 400 F.2d 627, 638-639 (9th Cir.1968), cert. denied, 400 U.S. 1022, 91 S.Ct. 585, 27 L.Ed.2d 633 (1971). The voir dire demonstrates that the pretrial publicity was not so prejudicial as to create in the minds of the prospective jurors any preconceived notions regarding the guilt of any of the defendants that could not be set aside by the jurors. Thus, Irvin v. Dowd is clearly distinguishable.

Nor do we find Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966), or Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965), apposite. This case does not present the extraordinary circumstances found to exist in Sheppard and Estes. Accordingly, we decline defendants' invitation to infer "inherent prejudice" from the extensive publicity which preceded this trial. See United States v. Blanton, 719 F.2d 815, 832 (6th Cir.1983) (en banc), petition for cert. denied, --- U.S. ----, 104 S.Ct. 1592, 80 L.Ed.2d 125 (1983).

III. Challenges of Jurors for Cause

The district court has broad discretion in ruling on challenges of jurors for cause. United States v. Le Pera, 443 F.2d 810, 812, (9th Cir.1971). Here, the district court made an objective assessment of each juror's impartiality, after inquiring into the juror's knowledge of the facts. See Silverthorne v. United States, 400 F.2d at 638-39. Our review of the voir dire examination of jurors Roger May, Judith Barrett and David Rhys satisfies us that the district court did not commit "manifest" error in refusing defendants' challenges for cause. It was not an abuse of discretion for the trial judge to decide on the basis of each juror's answers to the questions put to them that these jurors could place the pretrial publicity to one side and try their best to render an impartial verdict. We think that the law does not require more of a conscientious juror. See, e.g., United States v. Miller, 666 F.2d 991, 999 (5th Cir.), cert. denied, 456 U.S. 964, 102 S.Ct. 2043, 72 L.Ed.2d 489 (1982); United States v. Jimenez-Diaz, 659 F.2d 562, 568 (5th Cir.1981), cert. denied, 456 U.S. 907, 102 S.Ct. 1754, 72 L.Ed.2d 164 (1982); Geagan v. Gavin, 292 F.2d 244, 248-49 (1st Cir.1961). We do not view United States v. Marshall, 360 U.S. 310, 79 S.Ct. 1171, 3 L.Ed.2d 1250 (1959), as controlling this case. There, inadmissible and extremely prejudicial evidence reached a majority of the jurors while the trial was in progress. In the present case, by contrast, the events surrounding the escape from Rocky Butte Jail, most of which were admitted into evidence anyway, were known by only three of the jurors, and their knowledge had been acquired, and its impact incurred, long before the trial began. ¹

IV. Admission of Evidence of Flight

Evidence of flight is generally admissible as evidence of consciousness of guilt. See, e.g., United States v. Hernandez-Miranda, 601 F.2d 1104, 1106-07 (9th Cir.1979); Shorter v. United States, 412 F.2d 428, 430 (9th Cir.), cert. denied, 396 U.S. 970, 90 S.Ct. 454, 24 L.Ed.2d 436 (1969). The test in United States v. Myers, 550 F.2d 1036, 1049 (5th Cir.1977), cert. denied, 439 U.S. 847, 99 S.Ct. 147, 58 L.Ed.2d 149 (1978), is met here. The fact that the escape took place the day before defendants were to be arraigned on the charges involved in this case strongly suggests that the escape was motivated by considerations related to this case. See United States v. Hernandez-Miranda, 601 F.2d at 1107; United States v. Peltier, 585 F.2d 314, 323 (8th Cir.1978), cert. denied, 440 U.S. 945, 99 S.Ct. 1422, 59 L.Ed.2d 634 (1979).

V. Admission of Possession of False Identification

It was not an abuse of discretion for the district court to admit evidence that defendant Guerrero was carrying false identification at the time of his arrest. Evidence of assumption of a false name following the commission of a crime is relevant as an admission "by conduct, constituting circumstantial evidence of consciousness of guilt and hence of the fact of guilt itself." McCormick on Evidence Sec. 271, at 655 (2d ed. 1972). See United States v. Boyle, 675 F.2d 430, 432-33 (1st Cir.1982); Marcoux v. United States, 405 F.2d 719, 721 (9th Cir.1968). Furthermore, because Guerrero does not indicate how this evidence prejudiced him beyond that "which all defendants must suffer when probative evidence is introduced against them," his argument that it should have been excluded under Fed.R.Evid. 403 is without merit. United States v. Boyle, 675 F.2d at 433.

VI. Admission of Other Crimes

The district court refused to grant defendant Guerrero's motion for a mistrial after a witness, in response to the government's question whether he had ever seen or met Guerrero before, answered, "He was in the penitentiary at the same time I was." Based on this statement, Guerrero argues that the jury could readily infer that he had had a prior criminal conviction. In United States v. Pavon, 561 F.2d 799 (9th Cir.1977), we said that evidence pointing strongly to an inference of a prior conviction should be excluded if direct evidence of the conviction could not have been introduced. Id. at 802.

Assuming that it was error to admit the witness's statement, it was nevertheless harmless. When an error in the admission of evidence is not of constitutional proportions, reversal is not required unless it is more probable than not that the error materially affected the verdict. United States v. Rohrer, 708 F.2d 429, 432 (9th Cir.1983); United States v. Valle-Valdez, 554 F.2d 911, 916 (9th Cir.1977). In a similar case, we held that admission of the testimony was harmless because it came up only incidentally, the witness made no aggravated or repeated references to the subject involved, and he did not state the crime for which the defendant was being held. United States v. Ezzell, 644 F.2d 1304 (9th Cir.1981). Here, it is more probable than not that the passing reference to Guerrero's prior incarceration in the state penitentiary, made during an 11-day trial, did not materially affect the verdict.

In addition, it was not an abuse of discretion for the district court to deny Walker's motion for mistrial. The motion was based on the allegedly improper...