U.S. v. Perkins

• Decision Date: 07 December 1990
• Docket Number: No. 88-5237,88-5237
• Citation: 937 F.2d 1397
• Parties: 34 Fed. R. Evid. Serv. 734 UNITED STATES of America, Plaintiff-Appellee, v. Ernest James PERKINS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1397

937 F.2d 1397

34 Fed. R. Evid. Serv. 734

UNITED STATES of America, Plaintiff-Appellee, v. Ernest James PERKINS, Defendant-Appellant.

No. 88-5237.

United States Court of Appeals, Ninth Circuit.

Submitted Dec. 7, 1990. ^*

Decided July 1, 1991.

Philip Deitch, Los Angeles, Cal., for defendant-appellant.

Adam B. Schiff, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.

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

Before WALLACE, Chief Judge, and O'SCANNLAIN and RYMER, Circuit Judges.

RYMER, Circuit Judge:

Ernest Perkins appeals his conviction for bank robbery under 18 U.S.C. Sec. 2113(a). Perkins claims the district court made several erroneous evidentiary rulings and improperly instructed the jury on consciousness of guilt and change of appearance. We affirm.

I. Facts

On November 9, 1987, at approximately 12:40 p.m., a single black male approached Ms. Linda Purmont's teller window in the Southern California Bank in Whittier. The man, who had a moustache, wore a rust-colored suit with wide lapels and bell bottom pants and carried a maroon soft-sided briefcase. He then placed a pouch on the counter and pushed a note toward her which stated, "This is a robbery. I have a gun and want all your large money." As the teller started taking money out of her drawer, the man repeated that he had a gun and his demand for large bills. The teller gave the man a total of $653 and activated the surveillance cameras as the robber left the bank.

On December 1, 1987, Perkins was indicted on four counts of bank robbery. On February 10, 1988, however, due to "certain evidentiary problems," the government moved to dismiss three of the four counts. Perkins opposed the motion on the ground that his trial preparation and defense strategy were based on the four count indictment. The district court granted the government's motion to dismiss, leaving Perkins to be tried only for the November 9 robbery of the Southern California Bank in Whittier. After a four-day trial in which the defendant testified, the jury found Perkins guilty. The district court denied Perkins's motion for a new trial and sentenced him to twelve years imprisonment.

II. Evidence of Dismissed Robbery Counts

Perkins claims that the district court improperly denied his pretrial motion to introduce evidence under Fed.R.Evid. 404(b) of the dismissed robbery counts and contends that the district court's ruling precluded him from developing his theory of the case. Perkins argues that the distinct modus operandi of the four crimes shows that the same person committed all of the robberies and that because Perkins was at work during two of them he could not be the robber. Perkins stresses that the government initially proceeded against him on the theory that he committed each of the four charged robberies, and accordingly, he should be able to preserve the same theory of defense even after the government dismissed three of the counts.

The district court's decision to admit or exclude evidence and the balancing of probative value against prejudicial effect are reviewed for an abuse of discretion. United States v. Kessi, 868 F.2d 1097, 1107 (9th Cir.1989); United States v. Brannon, 616 F.2d 413, 418 (9th Cir.), cert. denied, 447 U.S. 908, 100 S.Ct. 2993, 64 L.Ed.2d 858 (1980).

A defendant is entitled to introduce evidence which tends to prove someone else committed the crime. United States v. Armstrong, 621 F.2d 951, 953 (9th Cir.1980); Brannon, 616 F.2d at 418. One way of proving mistaken identity is by showing that other crimes similar in detail have been committed at or about the same time by a person other than the defendant. Of course, the district court may exclude this evidence under Fed.R.Evid. 403, if it is likely to confuse the issues or mislead the jury.

The "identity" exception to Rule 404(b) requires that the characteristics of the other crime or act be "sufficiently distinctive to warrant an inference that the person who committed the act also committed the offense at issue." United States v. Andrini, 685 F.2d 1094, 1097 (9th Cir.1982). "[I]f the characteristics of both the prior offense and the charged offense are not in any way distinctive, but are similar to numerous other crimes committed by persons other than the defendant, no inference of identity can arise." United States v. Powell, 587 F.2d 443, 448 (9th Cir.1978).

The modus operandi of the dismissed counts is not sufficiently similar to the charged offense to support an inference of identity and warrant admission under Rule 404(b). The robberies all involved a man supposedly wearing various disguises (fake moustache, beard, glasses, etc.), approaching the teller with something to carry away money, handing the teller a note or making a statement requesting money, and warning the teller not to push any buttons. In the district court, Perkins seized on the fact that the robber used a tennis racket cover to carry the money away as a sufficiently distinctive feature of the crimes. However, while unusual, this alleged "signature" element was present in only two of the four robberies and not in the November 9 robbery for which Perkins was tried and ultimately convicted. While the same person may have committed the two "tennis racket cover" robberies, the similarity of those crimes says nothing about who committed the instant offense. The robbery at issue did not involve any "peculiar, unique, or bizarre" conduct so as to constitute a personal signature; rather it was similar to most bank robberies. See United States v. Ezzell, 644 F.2d 1304, 1306 (9th Cir.1981) (quoting Parker v. United States, 400 F.2d 248, 252 (9th Cir.1968)). "The points of similarity between the [two] robberies were ones which are so common to most bank robberies as to be entirely unhelpful.... [T]he requirements of Rule 404(b) were not met here." Id.

Moreover, even if the evidence was properly admissible under Rule 404(b), it must nevertheless undergo the probative-prejudice balancing required under Rule 403 and may be excluded if the jury is likely to be confused or misled. Andrini, 685 F.2d at 1097; Brannon, 616 F.2d at 418. The district court did not abuse its discretion in focusing the trial on the offense at issue, and not allowing the parties to stray and discuss the details of several extraneous robberies.

Perkins cannot transform the exclusion of this evidence into constitutional error by arguing that he was deprived of his right to present a defense. The right to present a defense is clearly fundamental, but "[i]n the exercise of this right, the accused, as is required of the State, must comply with established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence." Chambers v. Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038, 1049, 35 L.Ed.2d 297, 313 (1973). In this case, the district court did not abuse its discretion by excluding the evidence as not probative of identity under Rule 404(b) and likely to mislead or confuse the jury under Rule 403. In any event, the district court did not deprive Perkins of the opportunity to present evidence critical to his defense; Perkins was permitted to, and did, present other evidence from which he could argue and the jury could infer that someone else committed the crime. Nor did the district court prevent Perkins from rebutting evidence introduced by the government. ¹

III. Jury Instructions

Perkins contends that the district court erred in instructing the jury that it could consider false exculpatory statements and an alleged change of appearance as evidence of consciousness of guilt. The adequacy of jury instructions is determined by examining them in their entirety. United States v. Feldman, 788 F.2d 544, 555 (9th Cir.1986), cert. denied, 479 U.S. 1067, 107 S.Ct. 955, 93 L.Ed.2d 1003 (1987). The district court's decision to give a jury instruction is reviewed for abuse of discretion. Id.

A. Consciousness of Guilt Instruction

The district court instructed the jury that false exculpatory statements could be considered as evidence of consciousness of guilt. ² Perkins contends that his questioning while visiting his parole officer at the U.S. Courthouse was not sufficiently confrontational regarding his involvement in a criminal charge to justify the giving of the instruction. We hold the instruction proper in this case.

Agent Dezihan, one of the arresting officers, testified that Perkins was advised of and signed a written waiver of his rights prior to questioning. Dezihan first asked Perkins "if he had been involved in any bank robberies." Perkins responded that he had not. The agent then inquired how Perkins got to the building and if Perkins owned a car. Perkins falsely responded that a friend, who had not parked but was "just driving around the building" dropped him off at the courthouse. Perkins also stated that he did not presently own a car because he had sold it. Following his arrest at the end of the interview, the officers discovered a blue Datsun registered to Perkins parked close to the building and found the keys to the car in his pocket.

If the jury credited Agent Dezihan's testimony, it could find that in response to the incriminating questions of an FBI agent, after waiving his Miranda rights, Perkins lied. Perkins's false exculpatory statements therefore properly could be considered as evidence of consciousness of guilt.

Perkins also challenges the instruction on the grounds that it permits the jury to consider the statements as evidence of guilt, rather than consciousness of guilt. The instruction does not instruct the jury that the conduct is evidence of guilt; rather, the instruction stresses that false statements may be considered as circumstantial evidence of consciousness of guilt, and that it is up to the jury to determine the significance of the evidence. Perkins's reliance on United States v. Di Stefano, 555 F.2d...