U.S. v. Crenshaw

• Decision Date: 11 February 1983
• Docket Number: 81-1782 and 82-1016,Nos. 82-1008,s. 82-1008
• Citation: 698 F.2d 1060
• Parties: 12 Fed. R. Evid. Serv. 998 UNITED STATES of America, Plaintiff-Appellee, v. Samuel DeWitt CRENSHAW and David Allen Gordon, Defendants-Appellants. UNITED STATES of America, Plaintiff-Appellee, v. Dennis Leo LEHMAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1060

698 F.2d 1060

12 Fed. R. Evid. Serv. 998

UNITED STATES of America, Plaintiff-Appellee, v. Samuel DeWitt CRENSHAW and David Allen Gordon,

Defendants-Appellants.

UNITED STATES of America, Plaintiff-Appellee, v. Dennis Leo LEHMAN, Defendant-Appellant.

Nos. 82-1008, 81-1782 and 82-1016.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Nov. 3, 1982.

Decided Feb. 11, 1983.

Beverly Johnson, Tacoma, Wash., for Crenshaw.

Monte E. Hester, Tacoma, Wash., for Gordon.

Allen R. Bentley, Asst. Federal Public Defender, Seattle, Wash., for Lehman.

C. James Frush, Asst. U.S. Atty., Tacoma, Wash., for U.S.

Appeal from the United States District Court For the Western District of Washington.

Before KENNEDY and SKOPIL, Circuit Judges and JAMESON, ^* District Judge.

JAMESON, Senior District Judge:

Samuel DeWitt Crenshaw and David Allen Gordon appeal their conviction for bank robbery. Dennis Leo Lehman, tried separately, appeals his conviction for aiding and abetting the robbery. ¹

I. Factual Background

The manager of a small rural bank in Belfair, Washington, received a call from a man representing himself as an attorney. It was agreed that the attorney would come to the bank later that day with two clients. Shortly before closing time two men arrived and told the manager they were waiting for their attorney. Just before the bank closed the manager received a phone call from a woman claiming to be the attorney's secretary, who said the attorney had had car trouble, could not make the meeting, and wanted the men to put their money in a safe deposit box overnight.

As soon as the bank was closed, both men drew handguns and ordered the employees into the vault. The employees were ordered to place all the money in a trash can liner. A total of $120,890.00 was taken. After the robbery witnesses saw two men with a suitcase crossing a field toward the local airport. A small aircraft was then seen taking off in a southerly direction.

Two weeks later Gordon, Crenshaw, and Lehman were arrested in Sacramento. The airplane, which had been traced to Lehman, was seen landing at the Sacramento airport. Lehman and Gordon were questioned in a nearby restaurant. Gordon was arrested for carrying a concealed weapon. A loaded pistol, matching the description of one of the robbery weapons, was taken from him. Lehman was released but later arrested at the airport. Lehman described the two men who had accompanied him.

While Lehman was held at the airport, FBI agents found a man matching the description given by Lehman. The man identified himself as "Mr. Rudd" and denied knowing Lehman. In a subsequent search of the aircraft a personal phone directory of Lehman's was discovered, which, when compared to an address book found in "Mr. Rudd's" shaving kit, revealed several names and numbers which coincided, including that of Lehman's mother. "Mr. Rudd" was arrested and turned out to be Crenshaw. After discovery of a Red Lion Inn room key in Crenshaw's pocket, it was determined that the three appellants had occupied rooms at the Red Lion Inn in Redding, California.

II. Crenshaw and Gordon Appeals

Crenshaw contends that (1) the FBI's seizure and pat-down at the Sacramento airport amounted to an arrest without probable cause in violation of the Fourth Amendment; (2) the affidavits in support of the warrant under which the FBI searched his motel room were not sufficient to establish probable cause; (3) statements made by the prosecutor constituted misconduct requiring a mistrial; and (4) testimony was admitted which should have been excluded because its prejudicial effect outweighed its probative value. Gordon also argues that (1) prosecutorial misconduct requires reversal; and contends further that (2) in-court identification testimony was so tainted by impermissibly suggestive pretrial identification procedures that he was deprived of due process of law; and (3) the errors and instances of prosecutorial misconduct when examined cumulatively deprived him of a fair trial.

We find no merit in any of these contentions. First, applying the factors outlined in United States v. Booth, 669 F.2d 1231, 1236 (9 Cir.1981) and United States v. Bautista, 684 F.2d 1286, 1292 (9 Cir.1982), we conclude that the determination of the district court that Crenshaw was not in custody during the initial FBI contacts in the Sacramento airport is not clearly erroneous. There were facts sufficient to support the district court's conclusion that Crenshaw voluntarily permitted the search of his shaving kit, thereby giving up his right to Fourth Amendment protections for his privacy interests in its contents. The record discloses no evidence that the agents led Crenshaw to believe he was under arrest. See Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043, 36 L.Ed.2d 854 (1973). Similarly, the record discloses no evidence that the FBI agents did anything to lead Crenshaw to believe he was under arrest when the pat-down search, to which he had consented, was conducted. ²

In arguing that the affidavit in support of the warrant to search his motel room was inadequate, Crenshaw reasserts his claim that the pat-down search which produced the room key and the subsequent arrest were not based on probable cause. We find this argument unpersuasive. The affidavit clearly states facts upon which the issuing magistrate could conclude that the pat-down search was based on either consent or a reasonable suspicion that Crenshaw was armed. Even if the issuance of the warrant were somehow faulty, the error is harmless. The only evidence obtained from Crenshaw's motel room was a handgun similar to one used in the robbery. Given the weight of the Government's other evidence, ³ we cannot say there is a reasonable possibility that the error in admitting the handgun, if there was any, materially affected the verdict. See United States v. Valle-Valdez, 554 F.2d 911, 915 (9 Cir.1977).

Both Crenshaw and Gordon argue that the district court should have declared a mistrial for prosecutorial misconduct because of (1) statements by the prosecutor during trial and (2) admission of photo identifications of Crenshaw and Gordon by bank employees.

Reversing a trial court's decision not to grant a mistrial for improper comments by the prosecutor is appropriate only if the comments are "so gross as probably to prejudice the defendant" and any resulting prejudice is not "neutralized" by the court's instructions. United States v. Potter, 616 F.2d 384, 392 (9 Cir.1979), cert. denied, 449 U.S. 832, 101 S.Ct. 101, 66 L.Ed.2d 37 (1980). The prejudicial effect of the prosecutor's statements in this case appears minimal and, in any event, was neutralized by the court's limiting instructions.

Shortly after the robbery and again a week before trial, two bank employees picked Crenshaw's and Gordon's pictures out of a photo lineup of a dozen pictures. On the morning the trial began the prosecutor informed these witnesses that the men they had earlier picked would be present in the courtroom at the defendants' table. The court made a pretrial ruling that these comments of the prosecutor so tainted the reliability of later identifications that no eyewitness identification at trial would be allowed. At the trial the witnesses were at no time asked to identify the defendants in the courtroom as the robbers. They were asked, however, to pick again from the photo lineup the pictures of the robbers they had previously picked with no coaching. Appellants argue that this was tantamount to an in-court identification. We cannot agree. Any misconduct of the prosecutor did not affect the reliability of the identifications already made. Since the initial photo picks were not affected by the later misconduct of the prosecutor, it cannot be said that the court abused its discretion in permitting a repeat at trial of the photo identifications.

Crenshaw next argues that certain testimony should have been excluded because its prejudicial effect outweighed its probative value. ⁴ "The judge's determination of this balance is given great deference and this court will reverse it only where there is an abuse of discretion." United States v. Larios, 640 F.2d 938, 941 (9 Cir.1981) and cases there cited. See also United States v. Casanova, 642 F.2d 300, 301 (9 Cir.1981), cert. denied, 454 U.S. 899, 102 S.Ct. 401, 70 L.Ed.2d 215 (1981). We find no abuse of the trial court's discretion.

Finally, Gordon argues that even if each individual error considered separately does not require a reversal, the cumulative effect of the errors was so prejudicial that he was deprived of a fair trial. If evidentiary errors and prosecutorial misconduct are "more probably harmless than not", this court should affirm. United States v. Berry, 627 F.2d 193, 201 (9 Cir.1980), cert. denied, 449 U.S. 1113, 101 S.Ct. 925, 66 L.Ed.2d 843 (1981). Considering the case as a whole, we find that Gordon was not significantly harmed by any cumulative lingering prejudice from purported errors and prosecutorial misconduct. Moreover, additional evidence against Gordon includes three clear fingerprints left by one of the robbers at the bank. This court has held that fingerprint evidence alone is sufficient to convict. United States v. Scott, 452 F.2d 660 (9 Cir.1971).

III. Lehman Appeal

A. Contentions of Appellant

Lehman contends that the district court erred in (1) refusing to admit defense evidence that an unindicted person had planned the robbery; (2) admitting evidence of three prior bank robberies, but (3) rejecting evidence offered by the defense to rebut it; (4) refusing to order a prosecution witness to produce photographs of the getaway scene; (5) refusing defense evidence to explain Lehman's possession of large amounts of cash when arrested; (6) permitting a prosecution witness to testify and refusing to permit a defense witness to testify by reason of an exclusion order; (7) attaching a reimbursement condition to a writ...