U.S. v. Buffington

• Decision Date: 06 July 1987
• Docket Number: 83-1310 and 83-1319,Nos. 83-1309,s. 83-1309
• Citation: 815 F.2d 1292
• Parties: , 22 Fed. R. Evid. Serv. 1577 UNITED STATES of America, Plaintiff-Appellee, v. William BUFFINGTON, Ceariaco Cabrellis, and Booker T. Cook, Defendants- Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1292

815 F.2d 1292

55 USLW 2639, 22 Fed. R. Evid. Serv. 1577

UNITED STATES of America, Plaintiff-Appellee, v. William BUFFINGTON, Ceariaco Cabrellis, and Booker T. Cook Defendants- Appellants.

Nos. 83-1309, 83-1310 and 83-1319.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Dec. 12, 1984.

Decided April 28, 1987.

As Amended on Denial of Rehearing July 6, 1987.

David P. Druiliner, Sacramento, Cal., for plaintiff-appellee.

Daniel M. Davis, and Robert M. Holley, Sacramento, Cal., and Peter H. Smurr, Carmichael, Cal., for defendants-appellants.

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

Before WRIGHT, POOLE and WIGGINS, Circuit Judges.

POOLE, Circuit Judge:

Appellants William Buffington, Ceariaco Cabrellis and Booker T. Cook appeal their convictions of conspiracy to commit bank robbery, attempted bank robbery, use of a firearm in commission of a federal felony and being felons in possession of a firearm. They raise a series of objections to pretrial proceedings as well as events at trial. For reasons set forth below, we affirm in part and reverse in part.

FACTS

An informant told the Sacramento Police Department that appellants Buffington, Ceariaco Cabrellis, and Jimmy Cabrellis planned to rob a bank ¹ in the shopping center at Florin Road and Franklin Boulevard, and that appellant Cabrellis would be dressed as a woman. On December 17, 1982, a police officer observed two vehicles driving slowly around the Farmers Bank. He believed one of the drivers to be appellant Cabrellis, to whom one of the vehicles was determined in fact to be registered. Five days later on December 22, about 4:20 p.m., two men, later identified as Buffington and Cook, and a third person appearing to be a woman, later identified as appellant Cabrellis, driving a white Pontiac, entered the shopping center.

The Pontiac proceeded down one aisle of parking and slowly went past Bay View Federal Savings, toward which the occupants of the vehicle seemed to be looking. They then drove out of the parking area, onto an adjacent street behind the bank. After a U-turn, the car slowly returned down another aisle of parking past the bank, and the occupants again looked toward Bay View Federal. The driver, Buffington, parked the vehicle about one hundred fifty feet from a Payless Store, which was about the same distance from the bank. Buffington left the car, entered Payless, and walked to a window which overlooked Bay View Federal. He did not purchase, inspect goods, or shop, but after three minutes, walked over and stood in a cashier line.

About two minutes after Buffington left the vehicle, Cook also emerged and stood by the car door. He wore a large peacoat, a hat, and a long scarf. The government concedes that the Sacramento weather on that December day was "inclement." The person dressed in women's clothes, Cabrellis, also exited the car and stood by the door. Both persons were facing Bay View.

By sheer coincidence, a major power outage then occurred affecting the shopping center area. Shortly afterwards, Margaret Morningstar, a Bay View Federal teller, walked to the front door of the bank and locked the door, at which time she noticed Cook wrapping the scarf over his face so that only his glasses showed. She mentioned to a security guard that the man would be unable to rob the bank because she had just locked the door. Buffington, meanwhile, returned to the car, which he, Cabrellis and Cook reentered. Buffington drove out of the parking area, passing Police Officer Torres, who identified the female as Cabrellis from a photograph. Police officers then stopped the vehicle, ordered the appellants to exit the car at gunpoint, and forced them to lie face down on the pavement. Police found a revolver on Cook's person and a revolver on the left rear floorboard of the vehicle. Appellants were then arrested. Officers later discovered that Cook was wearing four to five coats or jackets.

Appellants were subsequently indicted by a United States grand jury on four counts. Count I of the indictment charged them with conspiracy to commit bank robbery, in violation of 18 U.S.C. Sec. 371. Count II charged attempted unarmed bank robbery, 18 U.S.C. Sec. 2113(a). ² Count III charged them with use of a firearm in the commission of a federal felony in violation of 18 U.S.C. Sec. 924(c)(2), ³ and Count IV charged them with being felons in possession of a firearm under 18 U.S.C. App. Sec. 1202(a)(1). ⁴

Prior to trial, appellants filed a motion to obtain the statements of the informant for use during a hearing brought to suppress evidence seized during the stop of their vehicle at the shopping center. On March 23, 1983, the district court ordered the government to provide appellants with police reports and other documents relating to the suppression issue pursuant to 18 U.S.C. Sec. 3504. The government only partially complied with the order and declined to produce the informant's statements. The court then granted appellants' motion to suppress. The government appealed this ruling, but later voluntarily dismissed its appeal, on the theory that it could make its case without reliance on this informant's information.

Over objection by appellants the district court denied appellants' motion to bar rehearing, and then on August 11, 1983, denied the motion to suppress. The court stated that its ruling was made without considering any information supplied by the informant; even in the absence of such information the court found sufficient cause for appellants' arrest and the subsequent seizure of evidence.

After a jury trial, appellants were found guilty of all four charges. They were sentenced as follows: Each defendant was sentenced to 5 years imprisonment on Count I (conspiracy to commit bank robbery); Cabrellis and Cook were each sentenced to 20 years imprisonment on Count II (attempted armed bank robbery), the sentences to run consecutively to that imposed under Count 1; Buffington was sentenced to serve 15 years imprisonment on Count II, also running consecutively to his sentence on Count I. Each defendant was sentenced to serve 2 years imprisonment on Count IV, the sentences to run concurrently with those imposed under Counts I and II. On Count III the sentence as to each defendant was suspended and each was placed on 5 years probation, the probation to commence upon each defendant's release from custody under the sentences imposed in Counts I, II and IV.

On appeal, appellants challenge the district court's order granting reconsideration of the suppression motion, and the order which denied suppression without requiring the disclosure of information supplied by the informant. They argue that evidence seized from their vehicle should have been suppressed because the stop constituted an arrest without probable cause, which was not justified under Terry v. Ohio. They claim that the evidence was insufficient to support their convictions for attempted bank robbery and conspiracy to commit bank robbery. Appellant Cook has specified as error a variety of matters concerning proceedings before and during trial which will be treated later in this disposition.

I. Motion to Suppress

A. Propriety of the August Reconsideration

On August 11, 1983, at the insistence of the United States Attorney, the district judge reconsidered the motion to suppress which he had granted on March 28, and on this occasion denied appellants' motion. Appellants now argue that it was error to change the ruling since the government had not presented new evidence or additional facts which would justify reversing the prior decision. They suggest that once such an order had been entered, reopening it impermissibly gave the prosecution a "second bite" and a chance to do later what it ought to have done earlier, since the government had voluntarily abandoned its appeal because it appeared that the original requirement of disclosure was correct. We disagree because our examination of the record leads us to conclude that the proceedings of March 23 and 28 did not constitute a plenary suppression hearing and that at all times the court understood and acquiesced in the government's effort to obtain interlocutory review of the original suppression order.

In the course of these proceedings, defendants sought discovery as to the identity of the informant and the nature of his communications to the authorities. They based their demand on the provisions of 18 U.S.C. Sec. 3504 ⁵ which they argued gave them the right to inquire into the prosecution's sources of information. The district court ruled that the statutory language of 18 U.S.C. Sec. 3504 left unclear whether Congress had intended that enactment to create an exception to the rule of limited discovery in criminal cases under the Jencks Act, 18 U.S.C. Sec. 3500, and Rule 16 of the Federal Rules of Criminal Procedure. The government opposed this construction of the law, and asked time to decide whether to comply or to seek appellate review of such a ruling. The court then continued the case to March 28, at which time the government was to state whether in fact it would produce the information because, if it did not, the court would grant suppression and probably would dismiss the indictment, since the evidence needed to support the charges would have been disallowed.

On the scheduled date, the prosecutor stated that the government had decided not to yield the documents and information. He recognized that the court would thereupon grant suppression, but he urged that any order merely suppress without prejudice so that review under 18 U.S.C. Sec. 3731 could be pursued. He assured the court that if the appellate court sustained the order to produce, the prosecution would comply on remand. He further suggested the possibility that the case could be presented at the suppression stage without relying upon any of the informer's information and could be confined solely to the...