U.S. v. Bagley

Citation765 F.2d 836
Decision Date09 July 1985
Docket NumberNo. 84-3063,84-3063
Parties, 18 Fed. R. Evid. Serv. 1020 UNITED STATES of America, Plaintiff-Appellee, v. Carlo Scott BAGLEY, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

William W. Youngman, Asst. U.S. Atty., Portland, Or., for plaintiff-appellee.

Steven Wax, Asst. Federal Public Defender, Portland, Or., for defendant-appellant.

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

Before GOODWIN, SKOPIL and WIGGINS, Circuit Judges.

WIGGINS, Circuit Judge:

Appellant Carlo Scott Bagley was convicted after a jury trial of bank robbery, in violation of 18 U.S.C. Sec. 2113(a). He appeals

his conviction and urges reversal on the basis of several alleged errors in the pretrial proceedings and in the trial itself. We reject his contentions and affirm his conviction.

FACTS

On October 31, 1983, at approximately 12:45 p.m., the Peninsula Branch of the First Interstate Bank of Oregon was robbed by a lone black male who was wearing a cap, reddish-pink sunglasses, and a dark jacket. The robber obtained $500 in cash from a teller which included five twenty dollar ($20) bait bills.

The bank manager observed the robbery and followed the robber out of the bank. Although she lost sight of the robber momentarily, she heard a car start and watched it turn east on Willamette Boulevard. The car she observed was a large, gold colored American made automobile. She believed it was the getaway car.

The teller and manager promptly reported the robbery to the police and provided a description of the robber and the getaway car. This information was transmitted over the police radio to patrol cars in the vicinity. The transmission was received by Officers Stolley and Frater who were driving separate cars in the area, as well as by FBI agents who were investigating prior bank robberies.

A few minutes after the robbery, Officer Stolley observed a car matching the description of the getaway car. Officer Stolley followed the car for approximately half a mile and then pulled up alongside the suspected getaway car. He observed that the only occupant was the driver, a black male who resembled the description given of the bank robber. At this time the two cars were on Greeley Street.

At about the same time, Officer Frater was driving in the opposite direction on Greeley Street and he observed a large gold, Buick automobile being followed by Officer Stolley. As he drove by the Buick, Officer Frater saw the driver.

After both police cars had passed the Buick, the driver immediately parked the car on Greeley Street and departed on foot between two houses. Officers Stolley and Frater promptly returned to the scene of the parked Buick. Being uncertain of the involvement of the driver in the recent bank robbery, the officers decided not to pursue him.

The Buick was lawfully parked on Greeley Street. The car was locked and no key was in the ignition. A registration check made at the scene revealed that the Buick was registered to Marjorie and Anthony Akers.

The bank manager was brought to the scene of the parked Buick. She identified it as the getaway car. Visible on the front seat of the Buick were sunglasses similar to those worn by the robber and a pair of gloves.

After the manager had identified the Buick as the getaway car, Police Officer Ault made a forced entry into the car. Officer Ault intended to remove the sunglasses and gloves. Once inside the car, however, Officer Ault decided to leave these items in place. He conducted no further search of the car. Sometime after 1:15 p.m., Officer Ault ordered the car towed to a storage lot. The car was removed from Greely Street by 1:30 p.m.

While the above described activities were taking place, the FBI was also investigating the bank robbery. FBI agents focused their attention upon Bagley because he was a suspect in two earlier robberies. A team of FBI agents went immediately to the Bagley residence and began surveillance. The Bagley residence was approximately two miles from the site of the parked Buick. FBI Agent Snow went first to the Bagley residence and then to the location of the parked Buick. He took with him two photographic arrays.

The FBI agents at the Bagley residence observed Bagley arrive between 1:15 p.m. and 1:20 p.m. as a passenger in a car driven by Chris Pennington. The agents watched Bagley enter his house.

In the meantime Agent Snow had arrived at the site of the parked Buick. Agent The agents at the Bagley residence saw Bagley exit the house at approximately 1:30 p.m. As Bagley was about to enter a car driven by Pennington, the agents detained Bagley and questioned him. The agents then proceeded to handcuff him and transport him to the bank in their car.

Snow displayed the photographic arrays to the bank manager and to Officers Stoley and Frater. The bank manager identified Bagley as the robber. The officers selected Bagley's picture as the driver of the Buick.

At the bank, the teller was asked if she recognized Bagley. She indicated, with some hesitation, that she thought Bagley was the bank robber.

Three days later, the Buick was searched at the police storage lot pursuant to a search warrant. The search uncovered a pair of reddish-pink sunglasses, a pair of gloves, several documents with Bagley's fingerprints, and $500 in cash, including the five twenty dollar ($20) bait bills.

I. ALLEGED PRETRIAL ERRORS

1. Denial of motion in limine to preclude impeachment of Bagley with prior bank robbery convictions.

Prior to trial, Bagley filed a motion in limine seeking to bar the prosecution from impeaching his credibility by introducing evidence of his prior convictions. 1 Bagley had previously been convicted of four felonies, two for robbery and two for forgery. The district court denied his motion and Bagley did not testify at trial. On appeal, he concedes the admissibility of his forgery convictions, but he challenges the district court's ruling regarding his prior robbery convictions.

In United States v. Cook, 608 F.2d 1175 (9th Cir.1979) (en banc), cert. denied, 444 U.S. 1034, 100 S.Ct. 706, 62 L.Ed.2d 670 (1980), we held that a defendant may preserve the right to challenge a district court's ruling refusing to prohibit impeachment by the introduction of prior convictions even if the defendant does not testify. Id. at 1183-86. In order to preserve this issue for appellate review a defendant must "establish on the record that [he or she] will in fact take the stand and testify if the challenged prior convictions are excluded and sufficiently outline the nature of his or her testimony." Id. at 1186. Following this procedure Bagley properly preserved his right to appellate review of the district court's ruling on his motion under Fed.R.Evid. 609(a)(1). Bagley offered to testify that he purchased the getaway car but sold it prior to the robbery. He would also deny any involvement in the robbery and explain his whereabouts at the time of the robbery.

Shortly before oral argument of this appeal, the United States Supreme Court decided Luce v. United States, --- U.S. ----, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984). In Luce, the Supreme Court held that in order to preserve the claim of improper impeachment with a prior felony conviction, the defendant must testify at trial. In so holding, the Court rejected the procedure adopted by us in Cook and applicable at the time of Bagley's trial.

Were we to apply Luce retroactively, Bagley's claim of error based on the district court denial of his motion in limine would fail because Bagley did not testify at trial. We find it unnecessary to determine whether Luce should be given retroactive application in this case. Bagley's claim of error under Rule 609 must fail because he has not demonstrated that a substantial right was prejudiced.

As is clear from its text, Fed.R.Evid. 609(a)(1) requires a weighing of the probative value of a prior conviction against the prejudicial effect to the defendant of that evidence. The prosecution bears the burden of establishing that the probative value of admitting a prior conviction We review a district court's ruling on a motion under Rule 609(a)(1) for abuse of discretion. See United States v. Mehrmanesh, 682 F.2d 1303, 1309 (9th Cir.1982). But, even if we conclude that the district court's ruling is erroneous, reversal is required only if a defendant demonstrates that a substantial right has been prejudiced. See United States v. Portillo, 699 F.2d 461, 464-65 (9th Cir.1982). A careful review of the record before us compels the conclusion that the district court abused its discretion in finding that the government met its burden of demonstrating that the probative value of Bagley's prior robbery convictions outweighed their prejudicial effect.

                outweighs its prejudicial effect.   United States v. Hendershot, 614 F.2d 648, 653 (9th Cir.1980).  Factors a district court should consider in reaching the appropriate balance are:  (1) the impeachment value of the prior crime;  (2) the temporal relationship between the conviction and the subsequent history of the defendant;  (3) the similarity between the prior offense and the offense charged;  (4) the importance of the defendant's testimony;  and (5) the centrality of the credibility issue.   United States v. Cook, 608 F.2d at 1185, n. 8
                

The purpose of impeachment is to challenge the credibility of a witness. See Gordon v. United States, 383 F.2d 936, 940 (D.C.Cir.1967), cert. denied, 390 U.S. 1029, 88 S.Ct. 1421, 20 L.Ed.2d 287 (1968). Proper impeachment is not, in itself, evidence of guilt or innocence; it merely casts a doubt on other evidence going directly to those issues which the trier of fact should consider. Consistent with this purpose, prior felony convictions which do not in themselves implicate the veracity of a witness may have little impact on credibility. For example, the question of the truth or...

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