U.S. v. Langford

• Decision Date: 21 October 1986
• Docket Number: No. 85-1217,85-1217
• Citation: 802 F.2d 1176
• Parties: 21 Fed. R. Evid. Serv. 1180 UNITED STATES of America, Plaintiff-Appellee, v. Charles LANGFORD, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1176

802 F.2d 1176

21 Fed. R. Evid. Serv. 1180

UNITED STATES of America, Plaintiff-Appellee, v. Charles LANGFORD, Defendant-Appellant.

No. 85-1217.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 14, 1986.

Decided Oct. 21, 1986.

Robert Fourr, Asst. U.S. Atty., San Francisco, Cal., for plaintiff-appellee.

Judd C. Iversen, San Francisco, Cal., for defendant-appellant.

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

Before SNEED, FARRIS and FERGUSON, Circuit Judges.

FARRIS, Circuit Judge:

Charles Langford appeals his conviction of unarmed bank robbery (18 U.S.C. Sec. 2113(a)). We have jurisdiction under 28 U.S.C. Secs. 1291 and 1294. We affirm.

By indictment handed down February 6, 1985, Langford was charged with armed bank robbery (18 U.S.C. Sec. 2113(d)). He was tried before a jury and convicted of the lesser included offense of unarmed bank robbery (18 U.S.C. Sec. 2113(a)). On April 19, 1985, the district court granted Langford's motion for a new trial and permitted his counsel to withdraw upon the latter's representation that he had "conflicts" with Langford. The matter was set to be retried on May 13, 1985. On May 8, 1985, substitute counsel moved for a continuance to prepare for trial. The motion was heard and granted on May 13, 1985. The matter was reset for July 8, 1985. On June 7, 1985, Langford filed a discovery motion that was heard June 13, 1985. The time between the filing and disposition of these motions was excludable for Speedy Trial Act purposes. 18 U.S.C. Sec. 3161(h)(1)(F). Thus, while the second trial commenced some 80 calendar days after the motion for new trial was granted, the 70-day time limit for retrial established under the Act, 18 U.S.C. Sec. 3161(e), was not violated. Accordingly, we do not decide whether the trial court improperly granted original trial counsel leave to withdraw, thereby prejudicing Langford's right to a speedy trial.

At trial Langford's cousin, Jerry Lankford, and his parole officer, Richard Wood, testified that the person depicted in bank surveillance photographs taken during the robbery was Langford. Such opinion testimony by lay witnesses is admissible under Fed.R.Evid. 701 if it is "limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue." United States v. Young Buffalo, 591 F.2d 506, 513 (9th Cir.), cert. denied, 441 U.S. 950, 99 S.Ct. 2178, 60 L.Ed.2d 1055 (1979); United States v. Butcher, 557 F.2d 666, 669-70 (9th Cir.1977). Such testimony is particularly valuable where, as in the present case, the lay witnesses are able to make the challenged identifications based on their familiarity with characteristics of the defendant not immediately observable by the jury at trial. See, e.g., United States v. Barrett, 703 F.2d 1076, 1086 (9th Cir.1983); United States v. Young Buffalo, 591 F.2d at 513. We conclude that, because Wood had met with Langford approximately 50 times and Lankford had known Langford most of his life, the opinions testified to by Lankford and Wood were rationally based and helpful to the jury in determining a fact in issue. Fed.R.Evid. 701.

Langford suggests that opinion testimony on ultimate issues of fact is inadmissible. Opinion testimony on ultimate issues of fact is admissible unless the testimony concerns the mental state or condition of a defendant in a criminal case. Fed.R.Evid. 704. Because the testimony Langford objects to was neither given by an expert nor concerned with Langford's mental state or condition, Langford's objection is untenable.

Langford additionally maintains that the trial court abused its discretion in balancing the probative value of the lay opinion testimony against its potential for prejudice. Rule 403 of the Federal Rules of Evidence provides that "[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice ..." Fed.R.Evid. 403. We conclude that, given the familiarity both Lankford and Wood had with Langford, their testimony was sufficiently probative to outweigh the danger of unfair prejudice. The district court thus did not abuse its discretion in this respect.

Upon Langford's ex parte application, the trial court appointed an expert in the field of eyewitness identification to assist in preparation of Langford's defense. Such an appointment requires a finding that the services of the expert "are necessary for an adequate defense." 18 U.S.C. Sec. 3006A(e)(1). Nevertheless, at trial the court excluded the expert's testimony concerning the unreliability of eyewitness identification:

I rather think in all of these situations it is a balancing question. The ruling of the court (excluding the proffered testimony) is in no way predicated upon the absence of qualifications of the witness who has been identified in his professional field of psychology. The ruling, including the use of his testimony as an expert, is that it goes beyond the field of expertise to which such testimony should be directed or can be directed, and is basically argumentative and intrusive upon the jury's responsibility as triers of the facts of the case.

Even if the admission of expert testimony concerning eyewitness identification is proper under certain circumstances, "there is no federal authority for the proposition that such testimony must be admitted." United States v. Moore, 786 F.2d 1308, 1312-13 (5th Cir.1986). We have repeatedly upheld the exclusion of such testimony. See United States v. Brewer, 783 F.2d 841, 842 (9th Cir.1986); United States v. Amaral, 488 F.2d 1148, 1153 (9th Cir.1973). It was within the broad discretion of the trial court to conclude that, on balance, the jury would not benefit from admission of the proffered evidence. See United States v. Solomon, 753 F.2d 1522, 1525 (9th Cir.1985) (quoting United States v. Awkard, 597 F.2d 667, 669 (9th Cir.), cert. denied, 444 U.S. 885, 100 S.Ct. 179, 62 L.Ed.2d 116 and 444 U.S. 969, 100 S.Ct. 460, 62 L.Ed.2d 383 (1979) ("Expert testimony is admissible if the jury may receive 'appreciable help' from it."). See also Brown v. Darcy, 783 F.2d 1389, 1396 (9th Cir.1986) (Expert testimony is properly excluded where it "infringes on the jury's role"; United States v. Binder, 769 F.2d 595, 602 (9th Cir.1985) ("Expert testimony should not be permitted if it concerns a subject ... that invades the province of the jury."); Amaral, 488 F.2d at 1153 ("It is the responsibility of counsel during cross-examination to inquire into the witness' opportunity for observation, his capacity for observation, his attention and interest and his distraction or division of attention."). As exclusion was not "manifestly erroneous," the judgment will not be disturbed. See Salem v. United States Lines Co., 370 U.S. 31, 35, 82 S.Ct. 1119, 1122, 8 L.Ed.2d 313 (1962).

At Langford's behest, the professional relationship between Langford and Parole Officer Richard Wood was not revealed to the jury when Wood identified Langford in the bank surveillance photographs. Sworn declarations submitted by Langford in connection with his post-trial motion for a new trial establish (1) that during a recess in trial proceedings Wood entered and exited the probation office in view of the jury, and (2) that post-trial interviews with an undisclosed number of jurors revealed that three had determined that Wood was Langford's probation or parole officer.

Langford contends that the affidavits establish that the jury was improperly exposed to "extraneous and prejudicial matter" and that the trial court erred in failing to grant his motion for a second new trial. His argument is that Wood's presence in the probation office gave rise to the inference that Langford had previously been convicted of a federal offense. That information, he continues, prejudiced Langford's defense, necessitating reversal and a third trial. In the alternative, Langford contends that the matter should be remanded for a hearing concerning the nature of any extraneous information that reached the jury. We disagree.

When information not admitted into evidence reaches the jury, "the defendant is entitled to a new trial if 'there existed a reasonable possibility that the extrinsic material could have affected the verdict.' " United States v. Bagley, 641 F.2d 1235, 1240 (9th Cir.) (citing United States v. Vasquez, 597 F.2d 192, 193 (9th Cir. 1979)), cert. denied, 454 U.S. 942, 102 S.Ct. 480, 70 L.Ed.2d 251 (1981). While we independently review allegations of juror misconduct to determine whether a new trial is required, United States v. Halbert, 712 F.2d 388, 389 (9th Cir.), cert. denied, 465 U.S. 1005, 104 S.Ct. 997, 79 L.Ed.2d 230 (1984), we give substantial weight to the district court's conclusion about the effect of the juror misconduct. Id. The tenuous connection between Wood's emergence from the probation office and knowledge of Langford's prior conviction is insufficient to support a finding of a reasonable possibility that the event complained of could have affected the verdict. While we recognize that where a trial court learns of a possible incident of jury misconduct, it is preferable to hold an evidentiary hearing "to determine the precise nature of the extraneous information," United States v. Bagnariol, 665 F.2d 877, 885 (9th Cir.) cert. denied, 456 U.S. 962, 102 S.Ct. 2040, 72 L.Ed.2d 487 (1982), not every allegation that extraneous information has reached the jury requires a full-dress hearing. United States v. Halbert, 712 F.2d at 389 (hearing not required where the trial court knew the exact scope and nature of the extraneous information). The district court did not abuse its discretion by failing to conduct such a hearing. Cf. Halbert, 712 F.2d at 389.

We have reviewed the additional assignments of error urged by Langford in his pro se...