U.S. v. Gaines

• Decision Date: 03 November 1977
• Docket Number: 77-1745,Nos. 77-1687,s. 77-1687
• Citation: 563 F.2d 1352
• Parties: UNITED STATES of America, Appellee, v. James Edward GAINES, Appellant. UNITED STATES of America, Appellee, v. Francis Edward MARTIN, Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1352

563 F.2d 1352

UNITED STATES of America, Appellee, v. James Edward GAINES, Appellant.

UNITED STATES of America, Appellee, v. Francis Edward MARTIN, Appellant.

Nos. 77-1687, 77-1745.

United States Court of Appeals,

Ninth Circuit.

Nov. 3, 1977.

Claudia A. Wilken, Asst. Federal Public Defender (argued), San Francisco, Cal., Paul H. Alvarado (argued), San Francisco, Cal., for appellants.

Malcolm S. Segal, Asst. U. S. Atty. (argued), San Francisco, Cal., for appellee.

Appeals from the United States District Court Northern District of California.

Before DUNIWAY and KILKENNY, Circuit Judges, and SKOPIL, District Judge. ^*

KILKENNY, Circuit Judge:

Appellants were indicted, tried and convicted in a jury trial of two robberies of a federally insured savings and loan association in violation of 18 U.S.C. § 2113(a). Pretrial motions to suppress, sever the trial, and to enjoin use in evidence of Martin's prior conviction were heard and denied.

FACTUAL BACKGROUND

On September 7, 1976, two black men entered and robbed the State Savings and Loan Association (S&L) in Oakland, California. One of the men, later identified at trial as Gaines, held an employee at gunpoint while the other man, identified at trial as Martin, forced the other employee to sit on the floor. The two men then took money from the tellers' cash drawers and forced the two employees into the vault. During the robbery one of the men left a handprint on the bank counter. The print was identified at trial as that of Martin.

Ten days later two black men again entered the same S&L in Oakland. One of the employees who had been present during the first robbery was again on duty. She saw the two men enter the bank and testified at trial that one of the men said, "Hi, its me again." She and another teller were Immediately after the second robbery the owner of a funeral home located near the S&L saw one man return to a car that had been parked in the funeral home lot about ten minutes earlier. Ten minutes later the second man returned to the car and the car left the lot at a high rate of speed. The funeral home owner described the car as a yellow MG convertible and noted the license plate number.

forced at gunpoint to sit on the floor while the men took cash from the tellers' drawers. The two employees and another woman who had entered the S&L during the robbery were placed in the vault. The two men left the S&L separately. Both men were identified by both employees as the appellants Martin and Gaines.

One week later on September 24, 1976, FBI Agent Diedrich saw a car similar to the one seen leaving the funeral home lot. Diedrich requested assistance from the Oakland Police Department, and, Cole, the responding officer, was told to arrest the car's occupants if they matched the general descriptions ¹ of those men suspected of the S&L robberies. Cole stopped the car and asked a few questions. The men met the descriptions and were arrested in the presence of Agent Diedrich.

Following the arrest, the two men were taken to the Oakland city jail where they were questioned by Agent Diedrich and another agent. Both agents testified that prior to any interrogation each appellant was advised of his Miranda rights, Gaines gave the officers a statement in which he admitted taking part in the September 7th and 17th robberies of the S&L. Additionally, he implicated Martin as his partner in both crimes. Martin denied any knowledge of the robberies and chose to invoke his right to counsel.

THE MARTIN APPEAL

Martin assigns three errors as follows:

I. Failure to grant a separate trial.

II. Refusal to exclude from evidence a prior conviction.

III. Failure to grant a speedy trial.

I.

Martin's first assignment of error is that the court should have granted his motion for a separate trial. He grounds his argument mainly on the fact that he was implicated by Gaines in the latter's confession and that the confession would not have been admissible in a separate trial. Appellant completely overlooks the general rule that joint trials of persons charged together for committing the same offense expedites the administration of justice, reduces the congestion of trial dockets, conserves judicial time, lessens the burden upon citizens to sacrifice time and money to serve on juries, and avoids the necessity of recalling witnesses who would otherwise be called upon to testify only once. See United States v. Patterson, 455 F.2d 264 (CA9 1972); Parker v. United States, 404 F.2d 1193 (CA9 1968), cert. denied 394 U.S. 1004, 89 S.Ct. 1602, 22 L.Ed.2d 782. The same general rule is stated in United States v. Hobson, 519 F.2d 765, 772 (CA9 1975), cert. denied, 423 U.S. 931, 96 S.Ct. 283, 46 L.Ed.2d 261, where we accepted the views of the Third Circuit in United States v. De Larosa, 450 F.2d 1057 (1971), cert. denied sub nom. Baskin v. United States, 405 U.S. 927, 92 S.Ct. 978, 30 L.Ed.2d 800 (1972). That court in commenting on a similar motion said, "A defendant is not entitled to a severance merely because the evidence against a co-defendant is more damaging than the evidence against him." United States v. De Larosa, supra, at 1065. While a great disparity in proofs may be sufficient to allow a severance in certain cases, the prime consideration is whether the jury can reasonably be expected to compartmentalize the evidence as it relates to separate defendants in the light of its volume and the limited admissibility. United States v. Kaplan, 554 F.2d 958 (CA9 1977); United States v. Campanale, 518 F.2d 352, 359 (CA9 1975), cert. denied sub nom. Matthews v. United States, 423 U.S. 1050, 96 S.Ct. 777, 46 L.Ed.2d 638 (1976). United States v. Nace, 561 F.2d 763 (CA9 1977).

The trial court was careful to protect Martin's rights. The Gaines' confession was not received in evidence. By agreement, Diedrich merely summarized its contents, omitting any reference to Martin. In these circumstances, he cannot complain. Bruton v. United States, 391 U.S. 123, 134, n. 10, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), fully supports the view that the writing itself would have been admissible where the prejudicial portions have been excised. Nor does the fact that Gaines failed to testify add to the weight of Martin's contention for the need of a severance. Here, as in United States v. Kaplan, supra at 966 (in banc rehearing denied September 7, 1977), there is nothing in the record to even remotely indicate that Gaines' testimony would exculpate Martin. In no way could Martin benefit from his codefendant's testimony as stated in his confession. To the contrary, this testimony would only serve to more deeply implicate him.

Moreover, counsel did not present to the lower court the arguments which he makes before us. Here, on appeal, his entire contention is based on the strength of the evidence against Gaines, the alleged weakness of the evidence against him, and Gaines' failure to testify at the trial. These arguments were not made to the lower court at the close of the testimony. It is a general rule that to preserve the point, the motion to sever must be renewed at the close of the evidence. United States v. Figueroa-Paz, 468 F.2d 1055, 1057 (CA9 1972). Diligent pursuit of a severance motion is a guiding principle. United States v. Kaplan, supra at 965.

II.

Martin, prior to trial, moved to exclude from evidence, for impeachment purposes or otherwise, his 1974 burglary conviction in the state of California. The district court weighed the prejudice to the appellant of the use of such evidence against the conviction's effect on his probity and credibility and, in the exercise of his discretion, denied the motion. Inasmuch as Martin's counsel, on direct examination, inquired of his client and established that appellant had entered a plea of guilty to the offense, the government did not use the conviction. For that matter, the question was not even touched upon in cross-examination. Appellant cites no authority in support of his argument that the court should sua sponte have held a hearing on the facts leading up to the previous convictions. Authorities such as United States v. Wilson, 536 F.2d 883, 885 (CA9 1976), cert. denied 429 U.S. 982, 97 S.Ct. 497, 50 L.Ed.2d 592, and United States v. Hatcher, 496 F.2d 529 (CA9 1974), leave the issues of remoteness in time and similarity of charges to the sound discretion of the trial judge. The record before us fails to disclose an abuse of that discretion.

III.

Martin argues that he was not afforded a speedy trial. The dates and events preceding his trial are undisputed. He was arrested on September 24, 1976, and indicted on October 6th of the same year. Arraignment was held on December 29, 1976. His counsel was appointed that same day, and he immediately moved for an extension of time to file motions in the case. This request was prompted by the deadline set by the magistrate to coincide Martin's motions with those of Gaines, who had been arraigned much earlier. The district court granted the additional time, and the new date for filing pre-trial motions was set for January 6, 1977. Another continuance was ordered by the court, and motions were heard on January 20th. Additional motions were argued on February 3rd. The trial was held on March 8th, 9th, and 10th, 1977.

The definitive test for determining the merits of a speedy trial claim was established in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). Martin's claim fails under all of Barker's four tests. First, the length of the delay, 137 days, can hardly be characterized as unreasonable, especially since Martin made no claim of prejudice arising from the delay. United States v. Carpenter, 542 F.2d 1132, 1134 (CA9 1976), and United States v The Speedy Trial Act of 1974 also offers no relief to Martin. The mandatory sanctions of 18 U.S.C. § 3162 do not become effective until mid-1979 pursuant to 18 U.S.C. § 3163. Nor do the interim provisions of 18 U.S.C. § 3164 mandate a dismissal. ...