U.S. v. Grammer, 74-2804

• Decision Date: 27 March 1975
• Docket Number: No. 74-2804,74-2804
• Citation: 513 F.2d 673
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jerry Wayne GRAMMER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 673

513 F.2d 673

UNITED STATES of America, Plaintiff-Appellee, v. Jerry Wayne GRAMMER, Defendant-Appellant.

No. 74-2804.

United States Court of Appeals, Ninth Circuit.

March 27, 1975.

Michael J. Brennan, Deputy Federal Public Defender, Los Angeles, Cal., for defendant-appellant.

Curtis Rappe, Asst. U. S. Atty., Los Angeles, Cal., for plaintiff-appellee.

OPINION

Before CARTER and WRIGHT, Circuit Judges, and EAST ^*, District Judge.

JAMES M. CARTER, Circuit Judge.

Defendant Grammer appeals from the judgment of conviction, following a jury trial, of robbery of a savings and loan association and interstate transportation of forged securities, in violation of 18 U.S.C. §§ 2113(a, d) and 2314, respectively. On appeal, he alleges two prejudicial errors:

I. The disclosure to the jury by counsel for the Government of the existence of a defense fingerprint expert (not called to testify by the defense) violated defendant's privilege against self-incrimination, attorney-client privilege, and the "function and purpose of appointment of experts under 18 U.S.C. § 3006A."

II. The introduction into evidence of prison records and a prison photograph of the defendant violated his right to a fair trial.

We affirm.

FACTS

On August 31, 1973, the Santa Barbara Savings and Loan Association was robbed of approximately $655.00 cash and 190 blank American Express traveler's checks. At least 32 of these traveler's checks were subsequently transported interstate, the endorsements forged, and cashed in Las Vegas, Nevada. It is for the Santa Barbara robbery and the interstate transportation of the checks that the defendant was convicted.

The evidence which tended to implicate the defendant in the robbery and subsequent interstate transportation of the checks was substantial. He was identified by a bank manager present during the robbery. The defendant's sister-in-law testified that she, her husband, the defendant, and the defendant's wife had lived in an apartment which was located two miles from the scene of the robbery. She had been asked by the defendant to obtain false birth certificates and drivers' licenses. When she refused, the defendant said he would get them himself.

A witness from the Bureau of Vital Statistics in Santa Barbara County testified that on July 30, 1973, she received a letter requesting the birth certificate for a Robert John Markmann. This letter was in the handwriting of the defendant's wife. The name Robert Markmann appeared on the signature, countersignature, and payee lines of the stolen checks which were passed in various Las Vegas gambling establishments on or about September 2, 1973.

The defendant's sister-in-law further testified that the defendant and his brother had surveilled a number of banking establishments in the area of the Santa Barbara Savings and Loan Association, had looked for and stolen a getaway car, and that the defendant had told the others that "it was too hard to burglarize a place, and that the only way we could possibly get by with it is to hold up the place." The getaway car described by the bank manager was exceedingly similar to a car stolen the same day the defendant obtained his car and which was discovered six-tenths of a mile from the defendant's apartment along the only direct route from the scene of the robbery.

About midnight of the night of the robbery, the defendant, his brother, and their wives left for Las Vegas. They registered under false names and were seen at the Show Boat Casino on the day when the stolen traveler's checks were passed. Government specialists testified that the signatures and fingerprints on the stolen checks belonged to the defendant.

DISCUSSION

I.

During the examination of the Government's (FBI) fingerprint specialists, Government counsel brought out, over defense objection, the fact that the fingerprint evidence in the case had been examined for two to three hours by a defense expert, Mr. Lee Smith. This expert was never called by the defense.

There was nothing impermissible with respect to this procedure, and the Government's subsequent argument to the jury that its own expert's identification of the defendant's fingerprints on the stolen checks was uncontradicted despite the defense expert's opportunity to study the same prints, was also proper.

First, defendant's 18 U.S.C. § 3006A ¹ argument fails because that section and the cases interpreting it were intended at the most to provide indigent defendants with an expert whose report may be immune from discovery by the Government unless the expert testifies. See Fed.R.Crim.P. 16(c); United States v. Milano, 443 F.2d 1022, 1027-1028 (10 Cir. 1971). There is no authority for precluding the Government from revealing the existence of the expert himself. And, in the present case, the defendant voluntarily furnished a copy of the report to the Government, thereby waiving any § 3006A, attorney-client, or Fifth Amendment privilege he might have. See United States v. Gurtner, 474 F.2d 297, 299 (9 Cir. 1973) (attorney-client).

Furthermore, defense counsel objected solely to testimony concerning the report made by its expert, not to the existence of the expert himself. The report was not introduced into evidence. This failure to specifically object to testimony eliciting the fact that the defense had an expert (including the failure to specify the grounds for the objection), also waived any privilege that might have existed. United States v. Lazarus, 425 F.2d 638, 642-645 (9 Cir. 1970) (self-incrimination).

Nor was the argument to the jury improper. In fact, defense counsel conceded the right of the Government's attorney to comment upon the failure of the defense to call its own fingerprint expert to impeach the Government's expert. The Government's attorney did no more than suggest that the failure of the defense expert to testify left the testimony of the Government's expert uncontradicted. This in no way commented upon the defendant's failure to testify. In Ignacio v. People of Territory of Guam, 413 F.2d 513, 521 (9 Cir. 1969), the court stated: "The closing comment of the prosecution to which appellants objected pertained to the failure of the attorneys for appellants to call their own ballistics expert. This was in no way directed to the failure of the appellants to testify on their own behalf. The appellants were not referred to, either directly or indirectly. There clearly was no prejudicial misconduct." Likewise, there was no prejudicial misconduct in the present case.

II.

The Government, as part of its case in chief, called as a witness a Correctional Treatment Specialist at the United States Penitentiary at Lewisburg, Pennsylvania, to identify certain documents from the defendant's prison file. These documents contained samples of the defendant's handwriting, and were admitted into evidence by the court because the Government's handwriting expert testified, out of the presence of the jury, that these prison handwriting samples were necessary to his testimony identifying the "Robert Markmann" signatures on the stolen checks as having been written by the defendant. The defendant contends that the introduction of these documents unnecessarily put the defendant's prior record before the jury.

In Fernandez v. United States, 329 F.2d 899, 908 (9 Cir. 1964), cert. denied, 379 U.S. 832, 85 S.Ct. 62, 13 L.Ed.2d 40, this court stated the general rule that "(r)elevant evidence which tends to prove a material fact in the case on trial is admissible even though it incidentally shows that the accused committed another offense at a different time and place." The relevance must outweigh the prejudice flowing from the fact that it shows misconduct not related to the transactions...