U.S. v. Adams

• Decision Date: 14 June 1978
• Docket Number: Nos. 77-1878,77-1879,s. 77-1878
• Citation: 581 F.2d 193
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Lamar ADAMS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. James Lee PINKERTON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 193

581 F.2d 193

UNITED STATES of America, Plaintiff-Appellee, v. Lamar ADAMS, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. James Lee PINKERTON, Defendant-Appellant.

Nos. 77-1878, 77-1879.

United States Court of Appeals Ninth Circuit.

June 14, 1978.

Rehearing and Rehearing En Banc Denied Aug. 28, 1978.

William Graham (argued), Los Angeles, Cal., for defendants-appellants.

Thomas J. Nolan, Asst. U. S. Atty. (argued), Los Angeles, Cal., for plaintiff-appellee.

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

Before HUFSTEDLER and WRIGHT, Circuit Judges, and SOLOMON, District Judge. ^*

EUGENE A. WRIGHT, Circuit Judge:

Adams and Pinkerton appeal their convictions for conspiracy, assault with intent to rob, robbery, and murder. 18 U.S.C. §§ 2, 371, 1111, 1114, 2114. Pinkerton contends he was improperly joined for trial. Adams appeals on that ground and others.

I. FACTS

In mid-September, 1976, Ward, ¹ Adams, and Pinkerton, a postal employee then suspended without pay, agreed to undertake a postal robbery. ² In the succeeding four months, the trio staged a series of attempted armed robberies utilizing Pinkerton's knowledge of local postal routes. Their one "success" resulted in the death of a postal employee.

On September 28 Pinkerton drove Adams and Ward to an alley he knew to be the last leg of a postal route. Adams and Ward feigned a scuffle to cause the driver to slow his truck. As the vehicle neared, Ward attempted to grab its ignition key, and Adams drew his gun. Ward restrained Adams and the postal employee drove away unharmed. ³

On October 18, ⁴ the three drove to the Lennox Post Office, where Pinkerton, dressed in his postal uniform, stopped a post office truck by requesting a ride to the main terminal. Solat, the driver, knew Pinkerton and agreed to give him the ride. Pinkerton and Adams then commandeered the vehicle, while Ward followed in Adams' car. They parked the truck under a freeway. Pinkerton jumped from the truck with the mail pouches and entered the car with Ward. Adams remained in the truck, fired five shots, then joined the others. ⁵

The trio left the truck and drove to the home of Ward's mother. Pinkerton, still in uniform, carried the mail pouches into the den. In the presence of Walton, Ward's half-brother, they cut the pouches open and divided the money three ways. Each received about $3,200. They burned the unwanted pouches and mail. Authorities searching for Solat discovered the truck with Solat's body in it. He had been shot five times.

On December 23, Adams approached a driver loading his truck with receipts from the Willowbrook postal station. Adams drew his gun and ordered him into his truck, but the driver escaped on foot. Adams fled after unsuccessfully attempting to board the truck. ⁶

Ward, Adams, and Pinkerton "cased" a location for another robbery on December 27, but abandoned the venture when Pinkerton recognized a postal inspector present there. Later the same day, Ward and Walton were arrested for possession of a dangerous weapon. Ward implicated Pinkerton and Adams in the Solat murder and agreed to cooperate with postal inspectors. ⁷

On January 7, 1977, Adams and Pinkerton asked Ward to participate in yet another robbery. Ward informed the authorities and permitted postal inspectors to install a tape recorder in his car.

On January 11, Pinkerton, Adams, and Ward drove to a postal station to intercept a scheduled truck. The truck arrived, driven by a postal inspector. A second inspector crouched on the passenger's side. Adams and Pinkerton approached the truck from opposite sides.

Pinkerton asked for a ride and was refused. As he backed away he signaled Adams. The driver identified himself and ordered Pinkerton to stop. Adams, on the passenger's side, drew his loaded revolver and pointed it at the truck. ⁸ The second inspector stood up, ordered Adams to freeze, and fired a shot in his direction. Adams tossed away his weapon and dropped to the ground uninjured. ⁹ Pinkerton and Adams were then taken into custody.

II. JOINDER AND SEVERANCE

Both appellants contend they were improperly joined for trial. Pinkerton alleges that his joinder with Adams prejudiced his defense because the jury considered evidence with respect to the December 23 assault with which only Adams was charged. Adams contends that the five substantive charges do not constitute "(a) series of acts or transactions," so as to be properly joined under Fed.R.Crim.P. 8(b). He also argues that joining the murder charge was impermissibly prejudicial.

Rule 8(b) provides:

Two or more defendants may be charged in the same indictment or information if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses. Such defendants may be charged in one or more counts together or separately and all of the defendants need not be charged in each count.

The purpose of Rule 8(b) is to balance the need to avoid the potential prejudice that may result from joining multiple defendants with the need to attain trial efficiency. United States v. Barney, 568 F.2d 134, 136 (9th Cir. 1978); United States v. Martin, 567 F.2d 849, 853 (9th Cir. 1977); United States v. Satterfield, 548 F.2d 1341, 1344 (9th Cir. 1977); United States v. Roselli, 432 F.2d 879, 899 (9th Cir. 1970).

The relevant inquiry here is whether the five substantive offenses charged constitute a "series of acts or transactions." It is not sufficient that the acts charged only meet the "same or similar character" requirement of Fed.R.Crim.P. 8(a). Satterfield, 548 F.2d at 1344. To constitute a series, the acts must evince a more substantial relationship.

We have held that a conspiracy count will provide the necessary link to satisfy the requirement of Rule 8(b). United States v. Donaway, 447 F.2d 940, 943 (9th Cir. 1971); Baker v. United States, 393 F.2d 604 (9th Cir. 1968). This proposition has gained general acceptance. United States v. Somers, 496 F.2d 723 (3rd Cir. 1974); Wright & Miller, 1 Federal Practice & Procedure § 144.

The government may not, however, add a conspiracy count merely to bypass the requirements of Rule 8(b). The conspiracy must be charged in good faith. Donaway, 447 F.2d at 943; United States v. Manfredi, 275 F.2d 588, 593 (2nd Cir. 1960).

Both appellants were charged with and convicted of conspiracy. Pinkerton does not argue that the conspiracy charge was asserted in bad faith. Adams does allege bad faith, but fails to substantiate his allegation.

Viewing the evidence most favorably to the government, United States v. Glasser, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942); United States v. Valdovinos, 558 F.2d 531 (9th Cir. 1977), it was sufficient not only to establish the government's good faith in charging conspiracy, but to support the conspiracy convictions as well. ¹⁰

We next consider whether the district court erred in denying the appellants' motions for severance from prejudicial joinder under Fed.R.Crim.P. 14.

Rule 14 motions for severance are committed to the sound discretion of the trial court. Donaway, 447 F.2d at 943. We will upset its ruling only upon proof of an abuse. Schaffer v. United States, 362 U.S. 511, 80 S.Ct. 945, 4 L.Ed.2d 921 (1960); United States v. Kaplan, 554 F.2d 958, 966 (9th Cir. 1977).

The test for determining whether the trial court abused its discretion is whether a joint trial was so prejudicial as to require the trial judge to exercise his discretion in but one way. United States v. Campanale,518 F.2d 352, 359 (9th Cir. 1975), Cert. denied, 423 U.S. 1050, 96 S.Ct. 777, 46 L.Ed.2d 638 (1976). The burden of demonstrating prejudice rests on the appellant, and is a heavy one. He must show more than that a separate trial might offer "a better chance" of acquittal. United States v. Cella, 568 F.2d 1266, 1288 (9th Cir. 1978), citing Campanale, 518 F.2d at 359.

Here the appellants can show no prejudice other than that which necessarily inheres whenever multiple defendants or multiple charges are jointly tried. Furthermore, the instructions delivered to the jury were calculated to remove, to the extent possible, any prejudice resulting from joinder. ¹¹

III. PRE-TRIAL HYPNOSIS OF WITNESS

During their investigation postal inspectors hypnotized Morin, allegedly an eyewitness to the murder and robbery of Solat, in order to aid his recall. Adams unsuccessfully moved to have Morin's testimony limited to his prehypnosis statements. At trial the defense called Morin, and the prosecution discredited his testimony with, among other things, his posthypnosis statements. Adams contends this conduct impermissibly interfered with his right to call witnesses in his behalf.

Until today we have considered only in civil actions the admissibility of testimony based on memories refreshed under hypnosis. We have held that the fact of hypnosis affects credibility but not admissibility. Kline v. Ford Motor Company, Inc., 523 F.2d 1067, 1069 (9th Cir. 1975); Wyller v. Fairchild Hiller Corp., 503 F.2d 506, 509 (9th Cir. 1974).

Other courts considering this problem in the context of criminal trials have generally followed the same approach. State v. Jorgensen, 8 Or.App. 1, 492 P.2d 312, 315-16 (1971); Harding v. State, 5 Md.App. 230, 246 A.2d 302, 311-12 (1968). Reversals have been predicated only on the failure to disclose the fact of hypnosis. United States v. Miller, 411 F.2d 825 (2nd Cir. 1969); Emmett v. Ricketts, 397 F.Supp. 1025 (N.D.Ga.1975) (habeas writ issued). We believe this reasoning is sound.

We are concerned, however, that investigatory use of hypnosis on persons who may later be called upon to testify in court carries a dangerous potential for abuse. Great care must be exercised to insure that statements after hypnosis are the product of the subject's own recollections, rather than of recall tainted by suggestions received while under...