U.S. v. Barrett

Citation766 F.2d 609
Decision Date23 July 1985
Docket NumberNo. 84-1744,84-1744
Parties18 Fed. R. Evid. Serv. 1170 UNITED STATES of America, Appellee, v. James W. BARRETT, Defendant, Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)

John G.S. Flym, Boston, Mass., for appellant.

F. Mark Terison, Asst. U.S. Atty., Portland, Me., with whom Richard S. Cohen, U.S. Atty., Portland, Me., was on brief for appellee.

Before COFFIN, Circuit Judge, ALDRICH and ROSENN, * Senior Circuit Judges.

COFFIN, Circuit Judge.

Appellant James Barrett challenges his conviction for armed bank robbery in violation of 18 U.S.C. Sec. 2113. He contends, principally, that: (1) the evidence was insufficient to support the verdict; (2) the district court ruled erroneously on several evidentiary matters; (3) the court improperly refused to instruct the jury as to the defense theory of the case; and (4) for these and several other reasons he should be granted a new trial. Having considered all the grounds raised by Barrett, we find that none of them, either alone or in combination, gives sufficient cause to overturn his conviction.

I. Facts

The following basic facts were virtually undisputed at trial. At 9:10 a.m. on Saturday morning, October 4, 1975, three armed men wearing ski masks entered the Lunts Corner Branch of the Northeast Bank in Portland, Maine. In a period of less than a minute, they ordered the customers and employees to get down on the floor, grabbed four or five bags of money containing approximately $11,500, and ran out of the bank and into their recently stolen getaway car parked just outside the bank's entrance. As the car careened out of the parking lot of the bank and the adjacent shopping mall, an off-duty police officer gave chase in his private car. By chance, he had seen the robbery in progress while he and his wife were on the opposite side of the bank at its drive-in window. The officer's wife had driven their car away and across the large parking lot to the shopping mall and had gotten out to call for help. The officer had slid behind the wheel and circled the car back toward the front of the bank, and as the getaway car drove away, he pursued. The two cars sped out onto a side street and down it for a short distance until they rounded a bend. The getaway car then slid to a stop on the left-hand shoulder of the road and its occupants came out firing their guns at the officer's still oncoming car. He skidded to a stop and ducked down behind the dashboard because he did not have his service revolver with him to return fire. Although he got one more brief glance at the fleeing robbers, he did not see exactly where they went. As was later discovered, they had run to a second, "clean" getaway car and escaped downtown into Portland.

With these facts not seriously disputed, the trial focused on the questions of whether Barrett had been one of the three robbers who entered the bank and whether there had been a fourth person, the driver, who had waited outside the bank in the getaway car. The prosecution charged that four individuals had been involved: Barrett, Joseph Aceto, who was the government's key witness, Raymond Levasseur, and Thomas Manning. Aceto testified that Manning had been the driver, waiting in the car, the only one of the four not wearing a mask; Aceto had been the point, or "floor", man entering the bank first and ordering the customers and employees to get down; and Levasseur and Barrett had followed, the former going around, or over, the counter to the left and the latter over it to the right. Both grabbed bags of money, came back over the counter, and retreated with Aceto out the door and into the car.

Barrett's story was markedly different. He claimed that he was not present during the robbery and had nothing to do with its planning or execution. He stated that although Manning had been an acquaintance in 1972 while both were in prison, the two had had no further contact until the end of October 1975, approximately three weeks after the Lunts Corner robbery. At that time, according to Barrett, he had met with Manning and Aceto, been told of that robbery, and been asked to join Manning, Aceto, and Levasseur in the execution of a series of bombings, kidnappings, and other bank robberies. When Barrett refused the offer, Aceto allegedly became very angry and Barrett left, never to see the others again.

Given the wide divergence in these two accounts of what occurred, the trial ultimately turned on the relative credibility of Aceto and Barrett. In the end, the jury believed Aceto's story and found Barrett guilty of armed bank robbery. Thereafter, Barrett filed a motion for acquittal or new trial. In its Memorandum of Decision of June 26, 1984, the district court denied the motion, addressing in detail most of the issues that Barrett now raises on appeal. 598 F.Supp. 469. We shall discuss here only the more substantive challenges. 1

II. Sufficiency of the Evidence

Barrett's initial claim is that the evidence adduced at trial was insufficient to support his conviction. For Barrett to succeed with this claim, he would have to demonstrate that the evidence "and all the legitimate inferences drawn therefrom, viewed in the light most favorable to the government, were insufficient to demonstrate beyond a reasonable doubt" that he was guilty. United States v. Smith, 726 F.2d 852, 866 (1st Cir.1984) (en banc).

Having carefully considered all of the evidence, we find that Barrett has failed to carry his burden and that a rational trier of fact could have found beyond a reasonable doubt that Barrett had been a participant in the Lunts Corner bank robbery and was therefore guilty as charged. While there may have been minor details in Aceto's testimony that did not ring true, 2 we are more impressed by the important aspects of his testimony that were corroborated by one or more of the disinterested witnesses who were either in or near the bank during the robbery. Most important is the fact that two of these witnesses, including the one who was closest to the getaway car as the robbers climbed into it, testified that they saw a driver waiting in the car as the three robbers in the bank ran outside. Thus, even though two other witnesses could remember seeing only three robbers in the fleeing getaway car, Aceto's critical testimony regarding the presence of the fourth individual was corroborated. 3 Also, although none of the disinterested witnesses was able to affirmatively testify to having seen two robbers behind the counter at the same time, as Aceto claimed, all of these witnesses saw three robbers inside the bank. In addition, their answers to questions concerning where they saw the various robbers, when considered in conjunction with the six or seven photographs taken during the robbery by the bank's two security cameras, provided at least some support for Aceto's claim that a second robber went over the counter on the right side.

As for those aspects of Aceto's testimony which were neither corroborated nor contradicted by disinterested witnesses--the most important being his identification of Barrett as the third robber in the bank--we simply note that there is no federal evidentiary requirement that an accomplice's testimony be corroborated. See, e.g., Lugo v. Munoz, 682 F.2d 7, 11 (1st Cir.1982). Unless an accomplice's testimony is "incredible or unsubstantial on its face", United States v. Dailey, 759 F.2d 192, 198 (1st Cir.1985) (quoting Lyda v. United States, 321 F.2d 788, 794-95 (9th Cir.1963)), which is not the case here, the testimony may be considered by the jury and used to support a conviction if the jury is properly instructed to scrutinize the testimony with great care, id. at 200. The trial court so instructed the jury and also gave proper cautionary instructions concerning the plea agreement that Aceto struck with the government in 1976 and the evidence that was adduced regarding his mental status, 4 both of which are discussed below.

III. Evidentiary Rulings

Barrett claims that the district court erred in a number of its critical evidentiary rulings. For convenience we shall consider these in three distinct groups: first, those relating to Aceto's 1976 plea agreement with the government; second, those relating to Aceto's mental status; and third, those relating to Barrett's 1963 shooting of Stephen Poulos.

A. Aceto's Plea Agreement

Defense counsel brought out on cross-examination a number of facts concerning Aceto's criminal convictions and his plea agreement in an effort to show that he was biased toward giving testimony favorable to the government's case. In particular Aceto testified that in the mid-1970's he had participated in five bombings, three bank robberies (including the Lunts Corner robbery), three car thefts, and a theft of dynamite. He admitted that he had ultimately been sentenced to time served, or two years and ten months, for his involvement in the bombings and bank robberies, even though he could have legally been sentenced for life. He stated that the minimal sentences were a result of the deal he had struck with the government, by which he agreed to testify against others involved in certain of the crimes in exchange for a promise that the government would recommend to any federal or state court before which Aceto appeared that he be sentenced to prison for substantially less than the maximum legal term. Aceto further stated that under his plea agreement the government had entered him into its Witness Protection Program, under which his identity had been changed, and that he still was the beneficiary of that program's services. 5 Finally, he admitted that in 1980 he had been convicted of five unrelated crimes committed after he was released on parole in 1979 and that he was currently serving a sentence of 13 years for those crimes.

Despite having been able to elicit this and other testimony to attack Aceto's...

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