Parker v. United States
Decision Date | 16 August 1968 |
Docket Number | No. 21873.,21873. |
Parties | Robert PARKER, Appellant, v. UNITED STATES of America, Appellee. |
Court | U.S. Court of Appeals — Ninth Circuit |
Ralph R. LePera (argued), Los Angeles, Cal., for appellant.
Dennis Kinnaird (argued), Asst. U. S., Atty., Wm. M. Byrne, Jr., U. S. Atty., Los Angeles, Cal., for appellee.
Before BARNES and ELY, Circuit Judges, and THOMPSON,* District Judge.
Appellant was indicted on six counts of armed robbery of national banks, including charges that he forced six different hostages to "accompany him" into the banks in question to "hold the bag" and assist in the robberies (thus "kidnapping" his aide). 18 U.S.C. § 2113(a), (d), (e). Prior to trial, the government dismissed Counts V and VI. Appellant was convicted by a jury on all four remaining counts, the jury finding that the conviction should be "without capital punishment."
Appellant was represented by counsel from arraignment through trial, and on this appeal. He was sentenced to twenty-five years on each count, the sentences to run concurrently. Jurisdiction below rested on 18 U.S.C. § 2113, and here on 28 U.S.C. § 1291.
Three alleged errors are raised. First, appellant claims that his pre-trial line-up confrontation was so unnecessarily suggestive and conducive to mistaken identification that he was denied due process of law. Second, he challenges the trial court's refusal to exclude the testimony of Wilbur Robinson, Jr., relating to an offense not charged in the indictment. Third, 18 U.S.C. § 2113 is claimed to be unconstitutional. We find no merit in any of these contentions, and we affirm the convictions.
Appellant relies upon the Supreme Court's holdings in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, and Gilbert v. State of California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178, each decided June 12, 1967. As appellant's counsel states in his brief, "appellant would fall within the meaning of and scope of the Wade and Gilbert, supra, cases but for the regrettable limiting retroactive effect of Stovall v. Denno," 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (also decided June 12, 1967). Regrettable as it may seem to all persons tried before June 12, 1967, non-retroactivity is the rule laid down by the Supreme Court of the United States in Stovall, in view of its desire not to "seriously disrupt the administration of our criminal laws." 388 U.S. at 300, 87 S.Ct. at 1971.
We turn then, as did the Supreme Court in Stovall, to the question of whether appellant's line-up confrontation was "so unnecessarily suggestive and conducive to irreparable mistaken identification that he was denied due process of law." 388 U.S. at 302, 87 S.Ct. at 1972.
We think the line-up in which appellant participated suffered from no such constitutional deficiency, and believe the matter is adequately covered by the recital in the government's brief (the essential truth and accuracy of which is undenied by appellant's counsel):
We have checked each transcript reference and find each statement fairly, adequately, and accurately represents the evidence presented to the jury. We find no denial of due process.
After a stumbling start in the trial court, the prosecution finally developed the theory that the testimony of Wilbur Robinson, Jr., was admissible to show appellant's modus operandi, and to aid in establishing his identity. Appellant objects because the government first stated it proposed to introduce the evidence to prove intent, which appellant alleges was unnecessary to the crime charged. But the court specifically ruled the evidence was admissible to show a modus operandi precisely similar to that charged to appellant, R.T. 429, and which was unusual in character and detail.
Mr. Robinson's testimony related to the appellant's alleged conduct on October 17, 1966. Count I charged similar acts on March 15, 1966; Count II charged similar acts on October 28, 1965; Count III charged similar acts on July 1, 1965; and Count IV charged similar acts on November 19, 1964. Thus the alleged objectionable evidence related to acts subsequent to the crimes charged.
The alleged remoteness of the acts sought to be proved is not decisive as to admissibility, although it may affect the weight of the evidence. Other factors are more important, such as the unique or bizarre nature of the conduct involved, the geographical area in which the conduct took place, and the like.
Appellant cites United States v. Stirone, 262 F.2d 571 (3d Cir. 1959), rev'd on other grounds, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960). We agree with Judge Goodrich's statement in that case:
This court has not hesitated to find error and to reverse conviction when proof of prior crimes has been introduced merely to show their commission, irrespective of identity, intent, design of plan, or when irrelevant to the crime charged. Cf. Thomas v. United States, 363 F.2d 159 (9th Cir. 1966); Cook v. United States, 354 F.2d 529 (9th Cir. 1965). We have held to the general rule that evidence of a defendant's previous misconduct or of other criminal acts is not admissible merely to show his criminal disposition or character, or to raise an inference that he was likely to commit a crime. Bush v. United States, 267 F.2d 483 (9th Cir. 1959); Wolcher v. United States, 200 F.2d 493 (9th Cir. 1952); Tedesco v. United States, 118 F.2d 737 (9th Cir. 1941).
But this general rule does not render evidence of prior offenses inadmissible in all instances. Anthony v. United States, 256 F.2d 50 (9th Cir. 1958); Harper v. United States, 99 U.S. App.D.C. 324, 239 F.2d 945 (1956); Bracey v. United States, 79 U.S.App.D.C. 23, 142 F.2d 85, cert. denied, 322 U.S. 762, 64 S.Ct. 1274, 88 L.Ed. 1589 (1944). Proof of conduct similar to that charged, which is peculiar, unique, or bizarre, is admissible to tend to prove identity. Drew v. United States, 118 U.S.App.D.C. 11, 331 F.2d 85 (1964); United States v. Pugliese, 153 F.2d 497 (2d Cir. 1945); 2 J. Wigmore, Evidence §§ 410, 416 (1940). Proof of other crimes has likewise been held admissible to show a common scheme, plan, design, system, course of conduct, or to establish motive or intent, or absence of mistake or accident, Tandberg-Hanssen v. United States, 284 F.2d 331 (10th Cir. 1960); Simons v. United States, 119 F.2d 539 (9th Cir.), cert. denied, 314 U.S. 616, 62 S.Ct. 78, 86 L.Ed. 496 (1941), Reed v. United States, 364 F.2d 630, 633 (9th Cir. 1966), or when the acts proved are so inextricably mixed or connected with the crime charged as to tend to prove it, United States v. Spatuzza, 331 F.2d 214 (7th Cir.), cert. denied, 379 U.S. 829, 85 S.Ct. 58, 13 L.Ed.2d 38 (1964); Harper v. United States, 99 U.S.App.D.C. 324, 239 F.2d 945 (1956); Kobey v. United States, 208 F.2d 583 (9th Cir. 1953); United States v. Crowe, 188 F.2d 209 (7th Cir. 1951). In the case at bar, appellant's actions in relation to Mr. Robinson were identical to those alleged in the indictment. Cf. Flood...
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