U.S. v. Brannon

• Decision Date: 10 March 1980
• Docket Number: 79-1069 and 79-1070,Nos. 79-1057,s. 79-1057
• Citation: 616 F.2d 413
• Parties: 5 Fed. R. Evid. Serv. 990 UNITED STATES of America, Plaintiff/Appellee, v. Roy Edward BRANNON, Defendant/Appellant. UNITED STATES of America, Plaintiff/Appellee, v. Fred George COX, Defendant/Appellant. UNITED STATES of America, Plaintiff/Appellee, v. Henry WILSON, Jr., Defendant/Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 413

616 F.2d 413

5 Fed. R. Evid. Serv. 990

UNITED STATES of America, Plaintiff/Appellee, v. Roy Edward BRANNON, Defendant/Appellant.

UNITED STATES of America, Plaintiff/Appellee, v. Fred George COX, Defendant/Appellant.

UNITED STATES of America, Plaintiff/Appellee, v. Henry WILSON, Jr., Defendant/Appellant.

Nos. 79-1057, 79-1069 and 79-1070.

United States Court of Appeals Ninth Circuit.

March 10, 1980.

Rehearing Denied April 21, 1980.

Roger S. Ruffin, Harry L. Hellerstein, Marvin Stender, San Francisco, Cal., for Brannon.

Joseph M. Burton, Asst. U. S. Atty., San Francisco, Cal., for plaintiff-appellee.

Appeal from United States District Court For the Northern District of California.

Before WALLACE and SNEED, Circuit Judges, and SOLOMON, ^* District Judge.

SOLOMON, District Judge:

Roy Edward Brannon, Fred George Cox and Henry Wilson, Jr. appeal their convictions for aggravated bank robbery under 18 U.S.C. § 2113(d).

We affirm.

On May 15, 1978, four armed men robbed a Wells Fargo Bank in San Francisco. Cox was identified as entering the bank first, holding a sawed-off shotgun. He ordered everyone to lie on the floor; he then remained at the door for the duration of the robbery. Wilson, holding a pistol, repeated the order to lie on the floor. He then jumped over the tellers' counter and took $496 in bills from a teller's drawer.

Brannon was identified as the third robber, and a man identified as the fourth robber was found dead two days later.

Immediately after the robbery, the robbers ran to the getaway car. As Wilson entered the car, a dye pack attached to the bills exploded, and Wilson dropped the money. The men drove away.

At the beginning of the robbery, a teller activated the bank's four surveillance cameras. The cameras photographed the robbery.

On the day after the robbery, Scalise and Steil, two investigators from the San Francisco District Attorney's Office received information from the City Housing Authority about an argument among several men. The investigators were told that during the argument two armed men forced another man into a car at gunpoint. Other men, also armed, left in the second car.

The investigators located and staked out the first of the two cars. They saw Cox and also Brannon and his girlfriend Nina Dean, leave a house and walk to the car. The men fit the descriptions of the armed kidnappers. Cox carried a cardboard box. Brannon held a jacket over his arm; an object which appeared to be a weapon protruded from his jacket. Cox and Brannon put the box, the jacket and the concealed object in the trunk of the car and drove off with Dean.

The investigators stopped the car. Cox and Brannon when asked got out of the car, but Dean refused. The investigators pulled her out. She had a loaded pistol and holster in her waistband.

Without obtaining a search warrant, the investigators opened the trunk where they saw a loaded sawed-off shotgun, ammunition and a pair of "patch pants." The shotgun and Dean's pistol were similar to those photographed by the surveillance cameras, and the "patch pants" were similar to those worn by Brannon during the robbery. The investigators impounded the car.

On September 20, 1978, Brannon, Cox and Wilson were indicted for armed bank robbery (18 U.S.C. § 2113(a) & (d)). The indictment charged that the defendants robbed the Wells Fargo Bank and "did assault other persons and put in jeopardy the lives of other persons by the use of dangerous weapons, to wit: handguns and a sawed-off shotgun."

Cox and Brannon filed a motion to suppress the evidence taken in the warrantless trunk search.

Cox also filed a motion to suppress the testimony of a witness who identified him in a photo line-up four months after the robbery. This witness had failed to identify Cox in an in-person line-up two days after the robbery.

The district court denied the motions.

Defendants were jointly tried by a jury.

At the trial, the Government used photographs taken by the bank's surveillance cameras. Brannon and Cox stipulated to the authenticity of the photographs and to their introduction.

Two of the photographs show a man who looks like Wilson and who like Wilson had a large gap in his teeth.

The Government showed these photographs to two bank tellers; each teller identified the man in the photographs as one of the robbers. The Government then asked if the tellers saw that man in court and both identified Wilson.

The Government also showed these photographs to other lay witnesses, all of whom said that Wilson was the man in the photographs.

Cox was not permitted to introduce photographs of a third person (Garrett) who Cox contended was the robber with the sawed-off shotgun.

The jury was instructed that in order to find defendants guilty of assault in the bank robbery, the defendants must possess the "apparent present ability" to inflict bodily harm or injury upon another.

The jury returned a verdict that all of the defendants "did assault, or put in jeopardy the life of another by the use of a dangerous weapon(s)."

Each of the defendants assert many trial court errors.

(1) Brannon contends that his Fourth Amendment rights were violated when the investigators conducted a warrantless search of the trunk of the automobile.

(2) Wilson challenges the use of bank surveillance photographs taken during the robbery.

(3) Cox contends that he did not receive a fair trial because the district court excluded photographs of a third person (Garrett) which were vital to his defense of mistaken identity.

(4) Brannon and Wilson contend that the district court erred in instructing the jury on the requirements for a conviction of armed bank robbery (18 U.S.C. § 2113(d)).

I. WARRANTLESS SEARCH

The Government contends that a warrantless search was justified under the "automobile exception." It asserts that Scalise and Steil had probable cause to believe the trunk contained instrumentalities of a crime and that exigent circumstances made it impractical to obtain a warrant.

Scalise and Steil staked out Brannon's car after they received information that armed men had used the car in a kidnapping. They also saw Brannon put a concealed object which looked like a weapon into the trunk.

Brannon, Cox and Dean drove off. The investigators stopped and arrested them. The investigators found a loaded gun in Dean's waistband and a sawed-off shotgun in the trunk as soon as they opened it.

In Chambers v. Maroney, 399 U.S. 42, 52, 90 S.Ct. 1975, 1981, 26 L.Ed.2d 419 (1970), the Court stated:

For constitutional purposes, we see no difference between on the one hand seizing and holding a car before presenting the probable cause issue to a magistrate and on the other hand carrying out an immediate search without a warrant. Given probable cause to search, either course is reasonable under the Fourth Amendment.

Here, the investigators were entitled to make an immediate warrantless search of the trunk for instrumentalities of a crime. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); Chambers v. Maroney, supra.

II. SURVEILLANCE PHOTOGRAPHS

There is no merit to Wilson's challenge to the use of the surveillance photographs. They show a man who looks like Wilson. The photographs show the man jump over the teller's counter, take money from a drawer and hold a gun in one hand and money in the other.

Brannon and Cox stipulated to the admission of the photographs. The stipulation dispensed with the testimony of five film witnesses who would have established the chain of events from the time the cameras were activated during the robbery until the films were removed, delivered, developed and printed.

Wilson did not join in the stipulation. He contends that, as against him, the Government was required to call its film witnesses to establish the chain of events, and when the Government failed to call the witnesses, there was insufficient foundation to admit the photographs, two of which were very damaging to Wilson.

The evidence that the photographs accurately depicted events in the bank during the robbery was undisputed. This evidence provided a sufficient foundation to admit the photographs. Fed.R.Evid. 901(a); Mikus v. United States, 433 F.2d 719, 725 (2nd Cir. 1970); United States v. Richardson 562 F.2d 476, 479 (7th Cir. 1977), cert. denied, 434 U.S. 1072, 98 S.Ct. 1257, 55 L.Ed.2d 766 (1978).

Wilson also contends that the government used the surveillance photographs in an impermissively suggestive way. Specifically, he asserts it violated due process in obtaining in-court identifications by first showing each witness the surveillance photographs.

The Government denies such use. Before being shown the surveillance photographs, each witness testified about the unmasked robber who had jumped over the counter. They were then shown the photographs and each witness testified that the man in the photographs was the robber they had described. They then identified Wilson as the man in the photograph. In fact one witness identified Wilson without looking at the photographs.

Unless the Government's use of the photographs led to "a very substantial likelihood of irreparable misidentification," there is no violation of due process. Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968).

The Government could have asked the tellers whether they saw the robber in court before being shown the photographs. Nevertheless, the identifications here were sufficiently reliable. There was no violation of due process. Manson v. Brathwaite, 432 U.S. 98, 111-114, 116, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140 (1977); United States v. Bridgefourth, 538 F.2d 1251, 1253 (6th Cir. 1976).

Over Wilson's objection, four prosecution witnesses testified that Wilson was the man shown in the surveillance photographs. Two of the witnesses were friends of Wilson and two were tellers who did not know him.

Wilson contends that the district court erred by permitting lay...