U.S. v. Armstrong, No. 79-1109

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtBefore KENNEDY and ANDERSON; KENNEDY
Citation621 F.2d 951
Parties6 Fed. R. Evid. Serv. 516 UNITED STATES of America, Plaintiff-Appellee, v. Dwight ARMSTRONG, Defendant-Appellant.
Docket NumberNo. 79-1109
Decision Date09 June 1980

Page 951

621 F.2d 951
6 Fed. R. Evid. Serv. 516
UNITED STATES of America, Plaintiff-Appellee,
v.
Dwight ARMSTRONG, Defendant-Appellant.
No. 79-1109.
United States Court of Appeals,
Ninth Circuit.
June 9, 1980.
Rehearing Denied July 10, 1980.

Page 952

Mark E. Merin, Kanter, Williams, Merin & Dickstein, Sacramento, Cal., for defendant-appellant.

Julian G. Macias, Asst. U. S. Atty., Sacramento, Cal., on brief; Fern M. Segal, Asst. U.S. Atty., Sacramento, Cal., for plaintiff-appellee.

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

Before KENNEDY and ANDERSON, Circuit Judges, and SCHWARTZ, * District Judge.

KENNEDY, Circuit Judge:

Dwight Armstrong appeals his convictions for three armed bank robberies. We

Page 953

agree with appellant that the trial court erred in excluding evidence which indicated that another man may have committed one of the robberies, and we reverse his conviction on that count. The convictions on the remaining counts are affirmed.

The first robbery charged against Armstrong was of the World Savings & Loan Association in Sacramento on July 11, 1978. Armstrong was also charged with two robberies that occurred only thirty minutes apart on August 14, 1978. At 2:15 p. m. on that day a man robbed the American National Bank in Sacramento. Thirty minutes later a man robbed a branch of the Bank of America in Sacramento.

The evidence linking Armstrong to the World Savings robbery on July 11 and the American National robbery on August 14 consisted primarily of eyewitness testimony by tellers. As for the Bank of America robbery, there was eyewitness testimony (including the testimony of one teller who saw the full face of the robber when his bandana fell down), as well as evidence that Armstrong was in possession of bait bills taken in that robbery and a newspaper clipping describing the crime.

Armstrong's defense was based largely on alibis. He testified that he was at his cousin's house at the time of the World Savings robbery. A witness testified he was with Armstrong in Oakland on the day of the August 14 robberies in Sacramento. The defense also attempted to introduce evidence that another person, who matched the description of the American National Bank robber, had used $3,000 in bait bills taken from the American National Bank to purchase a car the day after that robbery occurred. The district court excluded the evidence as irrelevant. The jury convicted Armstrong on all three counts.

Exclusion of Testimony

We hold it was error to exclude as irrelevant testimony that another man, matching the description of the American National Bank robber, had used bait money taken in that robbery to purchase a car. Fundamental standards of relevancy, subject to the discretion of the court to exclude cumulative evidence and to insure orderly presentation of a case, require the admission of testimony which tends to prove that a person other than the defendant committed the crime that is charged. See Chambers v. Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038, 1049, 35 L.Ed.2d 297 (1973); Pettijohn v. Hall, 599 F.2d 476, 482 (1st Cir.), cert. denied, 444 U.S. 946, 100 S.Ct. 308, 62 L.Ed.2d 315 (1979); United States v. Robinson, 544 F.2d 110, 113 (2d Cir. 1976), cert. denied, 434 U.S. 1050, 98 S.Ct. 901, 54 L.Ed.2d 803 (1977); Holt v. United States, 342 F.2d 163, 165-66 (5th Cir. 1965). The exclusion of this testimony was prejudicial, and we reverse the conviction on count II.

We disagree with the appellant, however, that the exclusion of evidence that another person may have committed one of the robberies requires reversal of the convictions for the other two crimes. The evidence linking appellant to the Bank of America robbery was overwhelming. We do not believe, moreover, that the erroneous exclusion of the evidence had any bearing on the conviction for the World Savings robbery which occurred in a different bank and over a month earlier.

Motion to Sever

Appellant moved before trial for severance of each of the offenses charged against him. The trial court denied appellant's request that each of the three offenses be tried before a different jury. On appeal Armstrong argues that the denial of severance constituted reversible error because he wished to take the stand and testify in his own behalf only with regard to two of the robberies and that the denial of the severance motion forced him to testify about the third robbery. 1

We reject this argument. Joinder of offenses is allowed under Fed.R.Crim.P. 8(a) when the offenses charged "are of the same

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or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan." Armstrong was charged with three armed bank robberies which were committed in Sacramento. Two of the robberies were committed on the same day and the other about a month earlier. Appellant produced the same alibi evidence as a defense to the two August 14 robberies. These two robberies were clearly part of the same transaction or series of transactions and all of the robberies could be considered as transactions constituting part of a common scheme or plan.

We have held that joinder is the rule rather than the exception and that the burden is on the defendant in his appeal following denial of the motion to sever to show that joinder was so manifestly prejudicial that it outweighed the dominant concern with judicial economy and compelled exercise of the court's discretion to sever. United States v. Brashier, 548 F.2d 1315, 1323 (9th Cir. 1976), cert...

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159 practice notes
  • State v. Koedatich
    • United States
    • United States State Supreme Court (New Jersey)
    • August 3, 1988
    ...United States v. Green, 786 F.2d 247 (7th Cir.1986); United States v. Crenshaw, 698 F.2d 1060 (9th Cir.1983); United States v. Armstrong, 621 F.2d 951 (9th Cir.1980); United States v. Brannon, 616 F.2d 413 (9th Cir.), Page 298 cert den. sub nom. Cox v. United States, 447 U.S. 908, 160 S.Ct.......
  • People v. Soper, No. S152667.
    • United States
    • United States State Supreme Court (California)
    • February 19, 2009
    ...v. Acker (4th Cir.1995) 52 F.3d 509, 514 [noting "dominant concern with judicial economy"]; United States v. Armstrong (9th Cir.1980) 621 F.2d 951, 954 (Armstrong) [same].) For these and related reasons, consolidation or joinder of charged offenses "is the course of action preferred by the ......
  • In re Personal Restraint of Stenson, No. 66565-6.
    • United States
    • United States State Supreme Court of Washington
    • January 4, 2001
    ...committed the crime that is charged.'" United States v. Crosby, 75 F.3d 1343, 1347 (9th Cir.1996) (quoting United States v. Armstrong, 621 F.2d 951, 953 (9th Cir.1980)). However, this rule determines what evidence is relevant; it does not require the admission of testimony barred by other r......
  • U.S. v. Green, No. CRIM.02-10301-NG.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • September 2, 2005
    ...disparity of 11.5% found permissible), cert. denied, 454 U.S. 1056, 102 S.Ct. 603, 70 L.Ed.2d 593 (1981); United States v. Armstrong, 621 F.2d 951 (9th Cir.1980) (absolute disparity of 2.8% found permissible); United States v. Potter, 552 F.2d 901, 906 (9th Cir.1977) (absolute disparity of ......
  • Request a trial to view additional results
160 cases
  • Hirst v. Gertzen, No. 78-2889
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • May 10, 1982
    ...which considers the effect of the underrepresentation on the actual numerical composition of the jury. United States v. Armstrong, 621 F.2d 951, 955-6 (9th Cir. 1980); United States v. Kleifgen, 557 F.2d 1293, 1297 (9th Cir. 1977). The Supreme Court has also suggested that analysis of the s......
  • United States v. Wells, Nos. 14-30146
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • December 19, 2017
    ...to the discretion of the court to exclude cumulative evidence and to insure orderly presentation of a case." United States v. Armstrong , 621 F.2d 951, 953 (9th Cir. 1980). Wells’ proffered testimony, however, was not even minimally relevant.Concurrence by Judge Nguyen ;Partial Concurrence ......
  • State v. Koedatich
    • United States
    • United States State Supreme Court (New Jersey)
    • August 3, 1988
    ...United States v. Green, 786 F.2d 247 (7th Cir.1986); United States v. Crenshaw, 698 F.2d 1060 (9th Cir.1983); United States v. Armstrong, 621 F.2d 951 (9th Cir.1980); United States v. Brannon, 616 F.2d 413 (9th Cir.), Page 298 cert den. sub nom. Cox v. United States, 447 U.S. 908, 160 S.Ct.......
  • People v. Soper, No. S152667.
    • United States
    • United States State Supreme Court (California)
    • February 19, 2009
    ...v. Acker (4th Cir.1995) 52 F.3d 509, 514 [noting "dominant concern with judicial economy"]; United States v. Armstrong (9th Cir.1980) 621 F.2d 951, 954 (Armstrong) [same].) For these and related reasons, consolidation or joinder of charged offenses "is the course of action preferred by the ......
  • Request a trial to view additional results
2 books & journal articles
  • MISSING THE MISJOINDER MARK: IMPROVING CRIMINAL JOINDER OF OFFENSES IN CAPITAL-SENTENCING JURISDICTIONS.
    • United States
    • Journal of Criminal Law and Criminology Vol. 111 Nbr. 3, June 2021
    • June 22, 2021
    ...Id. (247) Id. (248) Leipold & Abbasi, supra note 19, at 355-59. (249) See FED. R. CRIM. P. 14(a). (250) United States v. Armstrong, 621 F.2d 951, 954 (9th Cir. 1980). Although the Armstrong court made this remark when discussing the joinder of defendants, because of the lack of jurispru......
  • Ai in the Courtroom: a Comparative Analysis of Machine Evidence in Criminal Trials
    • United States
    • Georgetown Journal of International Law Nbr. 51-2, January 2020
    • January 1, 2020
    ...or when the defense wants to reference an item of evidence in the possession of a third party. 219. See United States v. Armstrong, 621 F.2d 951, 954 (9th Cir. 1980); United States v. Nixon, 418 U.S. 683 (1974); Pennsylvania v. Ritchie, 480 U.S. 39 (1987); United States v. Soape, 169 F.3d 2......

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