U.S. v. Epperson
| Decision Date | 09 December 1975 |
| Docket Number | Nos. 75--2805,75--2806,s. 75--2805 |
| Citation | 528 F.2d 48 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. James William EPPERSON, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Gary Harold MORRIS, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Before BARNES, HUFSTEDLER and WRIGHT, Circuit Judges.
Appellants James William Epperson and Gary Harold Morris were each found guilty in a jury trial of violating 18 U.S.C. § 2113(a) and (d). Both defendants were sentenced to twenty years imprisonment on each count, to run concurrently.
On May 2, 1975, a robbery occurred at the Espeeco Federal Credit Union in Bakersfield, California. On May 3, 1975, upon receipt of information that a certain Michael Johnson had paid his rent with a bait bill taken from the Credit Union he was arrested. On that same date, Bakersfield City Police Officers, without having obtained a search warrant, but having opportunity to do so, arrived at Johnson's apartment and asked his roommate, Faye Marler, whether they could search the premises. A consent search form was read and presented to Marler, which she signed. Upon searching the apartment, the officers found a radio, hat, a pillowcase containing certain articles, and a suitcase in a room which had been occupied by appellants with Johnson's permission while Marler had been absent from the premises, and in a hospital. She had no knowledge that appellants had stayed at her apartment. At trial, the articles so found were introduced into evidence over appellants' objection that the items seized were the product of an illegal search and seizure violative of the fourth amendment. On appeal, appellants contend that the trial judge erred in denying the motion to suppress (see RT--70).
In determining this issue, we must first consider whether appellants have standing to contest the search and seizure here in question. We view the Supreme Court's decision in Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973), as establishing the applicable guidelines:
'(T)here is no standing to contest a search and seizure where, as here, the defendants: (a) were not on the premises at the time of the contested search and seizure; (b) alleged no proprietary or possessory interest in the premises; and (c) were not charged with an offense that includes, as an essential element of the offense charged, possession of the seized evidence at the time of the contested search and seizure.' 411 U.S. at 229, 93 S.Ct. at 1569; see generally Simmons v. United States, 390 U.S. 377, 389--90, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); Jones v. United States, 362 U.S. 257, 262--64, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960).
More recently, the Supreme Court has again expressed its approval of Brown. See United States v. Kahan, 415 U.S. 239, 242, 94 S.Ct. 1179, 39 L.Ed.2d 297 (1974); United States v. Calandra, 414 U.S. 338, 348, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974). This Court as well has had occasion to apply the Brown standards. E.g., United States v. Boston, 510 F.2d 35, 37--38 (9th Cir. 1974), cert. denied, 421 U.S. 990, 95 S.Ct. 1994, 44 L.Ed.2d 480 (1975); United States v. Colacurcio, 499 F.2d 1401, 1406 (9th Cir. 1974); United States v. Ramirez, 480 F.2d 76, 79 (9th Cir. 1973).
Applying the Brown guidelines to the facts before us, we first note that appellants were not in the apartment at the time that the search and seizure occurred. Secondly, the government's case charged against appellants does not fit into category (c) above. In other words, '(t)he vice of allowing the Government to allege possession as part of the crime charged, and yet deny that there was possession sufficient for standing purposes, is not present.' Brown v. United States, 411 U.S. at 229, 93 S.Ct. at 1569. Finally, appellants here could have asserted, during their motion to suppress either a proprietary interest in the premises searched, or a possessory interest in the articles seized, or both. Under the Simmons doctrine, if the appellants had testified 'in support of (the) motion to suppress on Fourth Amendment grounds, (their) testimony (could) not there-after be admitted against (them) at trial on the (question) of guilt unless (they made) no objection.' Simmons v. United States, 390 U.S. 377, 394, 88 S.Ct. 967, 976, 19 L.Ed.2d 1247 (1968). Appellants, however, 'were afforded a full hearing on standing and failed to allege any legitimate interest of any kind in the premises searched or the merchandise seized.' 411 U.S. at 229, 93 S.Ct. at 1569. Thus, appellants failed to satisfy the standards established in Brown, supra, and therefore do not have standing to contest the search and seizure here in issue.
Appellants next contend that the admission into evidence of the testimony of Officer Shaw of the Federal Bureau of Investigation regarding a previous robbery of the same Espeeco Federal Credit Union, and the taking of judicial notice that an individual named Harold Clayborn pleaded guilty to this previous offense, constituted prejudicial error.
It appears from the record that the purpose for which Officer Shaw's testimony was elicited was to corroborate the testimony of Michael Johnson. Johnson, testifying for the government, stated on direct examination that appellant Epperson had said that his friend Harold had robbed this same credit union approximately two years ago (RT--28). The Court specifically admitted this evidence for the sole and limited purpose of corroborating Johnson's testimony (RT--263).
In determining whether the District Judge properly admitted the above testimony, we note that '(i)t is an axiom of the law of evidence that information will be excluded when its probative effect is outweighed by its prejudice to the opposing party.' United States v. Patterson, 161 U.S.App.D.C. 281, 495 F.2d 107, 112 (1974); Accord, United States v. Barnard, 490 F.2d 907, 913 (9th Cir. 1973). Applying the above principle to the facts of this case, we hold that the District Judge ruled correctly in admitting this testimony. Our examination of the record (see RT--258--67) reveals that the District...
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