773 F.2d 386 (1st Cir. 1985), 84-1416, United States v. Albert

Docket Nº:84-1416.
Citation:773 F.2d 386
Party Name:UNITED STATES of America, Appellee, v. James M. ALBERT, Defendant, Appellant.
Case Date:September 26, 1985
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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773 F.2d 386 (1st Cir. 1985)

UNITED STATES of America, Appellee,


James M. ALBERT, Defendant, Appellant.

No. 84-1416.

United States Court of Appeals, First Circuit

September 26, 1985

Argued April 4, 1985.

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Claire A. Julian, Bangor, Me., for defendant, appellant.

Margaret D. McGaughey, Asst. U.S. Atty., Portland, Or., with whom Richard S. Cohen, U.S. Atty., Portland, Or., was on brief for appellee.

Before COFFIN, BREYER and TORRUELLA, Circuit Judges.

TORRUELLA, Circuit Judge.

Appellant James M. Albert was tried and convicted of aiding and abetting in the commission of a robbery of a federally-insured bank in violation of 18 U.S.C. Secs. 2113(c) and 2. He was sentenced to a term of imprisonment of five years. The issues presented here are: (1) whether the district court erred in denying appellant's motion for relief from joinder of parties; (2) whether it properly received in evidence a certified copy of a Federal Deposit Insurance Corporation (FDIC) issued certificate of insurance; (3) whether the district court erred in sustaining a proposed defense witness' refusal to testify; and (4) whether it erred in refusing to grant appellant's motion for judgment of acquittal. For the reasons set forth below, we affirm the district court.


Appellant unsuccessfully moved before trial to sever his case from that of a codefendant named Arlen Lewis. The basis of

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this request was that he would be prejudiced by a tape-recorded conversation between Lewis and a confidential government informant. The conversation partly referred to the car that had been used to commit the robbery and which belonged to Albert. Since Lewis did not testify and, therefore, was not available for cross-examination, appellant claims the district court committed reversible error in denying his motion for severance.

A motion for severance is addressed to the discretion of the trial court, and to prevail a defendant must make a strong showing of prejudice. United States v. Arruda, 715 F.2d 671, 679 (1st Cir.1983). We review a trial court's denial of a severance motion for abuse of discretion and reverse only if denial deprived defendant of a fair trial, resulting in a miscarriage of justice. Id. Such is not the case here.

Courts need not grant severance unless the statements of non-testifying defendants clearly inculpate his codefendants. See United States v. Digregorio, 605 F.2d 1184, 1190 (1st Cir.), cert. denied, 444 U.S. 937, 100 S.Ct. 287, 62 L.Ed.2d 197 (1979); see also United States v. Brooklier, 685 F.2d 1208, 1218 (9th Cir.1982), cert. denied, 459 U.S. 1206, 103 S.Ct. 1194, 75 L.Ed.2d 439 (1983). In the instant case Albert was not mentioned in the tape that was heard by the jury. Moreover, there is nothing in the tape suggesting that the car's owner knew that the car was to be used in the robbery or that he had actively assisted in the commission of the offense. Accordingly, the court below did not abuse its discretion in denying severance on the basis of the taped conversation between Lewis and the informant.

Appellant also asserts that it was error to admit the taped conversation during trial. He claims support in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). Bruton, however, has no application unless the hearsay utterances of a defendant inculpate a codefendant. United States v. Digregorio, supra, 605 F.2d at 1190; see also United States v. Guillette, 547 F.2d 743, 755 (2d Cir.1976), cert. denied, 434 U.S. 839, 98 S.Ct. 132, 54 L.Ed.2d 102 (1977). Since the codefendant's extrajudicial statements in no way identified appellant as associated with the robbery, Bruton is inapposite to the facts of the instant case.


Appellant's next claim of error relates to the admissibility of a certified copy of the robbed bank's FDIC--issued certificate of insurance. The Government offered the document to show that the bank was federally insured. 18 U.S.C. Sec. 2113. The district court admitted the certificate under Fed.R.Evid. 803(6). Albert duly objected to the admission of the certificate on the ground it constituted hearsay evidence and could not be admitted under the business records exception to the hearsay rule.

The business records exception to the hearsay rule is codified in Fed.R.Evid. 803(6). Under the rule, records kept in the course of regularly conducted business activity are admissible unless the circumstances indicate lack of trustworthiness. United States v. Patterson, 644 F.2d 890, 900 (1st Cir.1981). The determination of whether a foundation has been laid for the application of this rule, and whether the circumstances indicate lack of trustworthiness is within the discretion of the district court. Id. The record shows the court below did not abuse its discretion in admitting the certificate under Fed.R.Evid. 803(6).

First, the robbed bank's internal auditor identified the exhibit as being a certified copy of the bank's FDIC issued certificate of insurance. The auditor testified that he had first-hand knowledge that the bank was federally-insured. Also, he stated that the certificate was maintained within the ordinary course of business at the Bangor Savings Bank, and that it had been in full effect the day of the robbery. The Government thus laid a proper foundation, through a competent witness, for the admission of the certificate as a business record under Fed.R.Evid. 803(6). See United

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States v. Riley, 435 F.2d 725, 726 (6th Cir.1970). Second, there was no question that the certificate was trustworthy or that the institution was, as stated in the certificate, federally insured. Indeed, Albert offered no evidence contradicting the prosecutor's evidence of the bank's insured status. United States v. Baldwin, 644 F.2d 381, 385 (5th Cir.1981). Therefore, the district court did not abuse its discretion admitting the insurance certificate as a business record under Fed.R.Evid. 803(6). See United States v. Wingard, 522 F.2d 796, 797 (4th Cir.), cert. denied, 423 U.S. 1058, 96 S.Ct. 792, 46 L.Ed.2d 648 (1976).


Appellant claims that the trial court erred in sustaining the assertion of fifth amendment privilege by Richard Higgins, a codefendant in the case at bar. Albert had sought Higgins' purportedly exculpatory testimony, but had been deterred by the codefendant's...

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