U.S. v. Hairston

• Decision Date: 24 August 1995
• Docket Number: No. 94-50315,94-50315
• Citation: 64 F.3d 491
• Parties: 95 Cal. Daily Op. Serv. 6713, 95 Daily Journal D.A.R. 11,452 UNITED STATES of America, Plaintiff-Appellee, v. Robert HAIRSTON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 491

64 F.3d 491

95 Cal. Daily Op. Serv. 6713, 95 Daily Journal

D.A.R. 11,452

UNITED STATES of America, Plaintiff-Appellee, v. Robert HAIRSTON, Defendant-Appellant.

No. 94-50315.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 10, 1995.

Decided Aug. 24, 1995.

Morton L. Shatzkin, Encino, CA, for defendant-appellant.

Gregory W. Jessner, Asst. U.S. Atty., Los Angeles, CA, for plaintiff-appellee.

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

Before: FARRIS and O'SCANNLAIN, Circuit Judges, and TASHIMA, District Judge. ^*

TASHIMA, District Judge:

This is an appeal from the judgment of conviction for violation of 18 U.S.C. Secs. 2111, 2114 and 924(c)(1), and the ensuing sentence. Because we must reverse the conviction on one issue, we also address the other issues which are likely to arise on a new trial. However, "we refuse to speculate as to the outcome of this hypothetical second trial and therefore decline to address [defendant's] sentencing argument at this time." United States v. Moorehead, 57 F.3d 875, 877 (9th Cir.1995).

I FACTS

On May 26, 1992, after having made two collections of money at the Veterans Administration Medical Center (VA), in Los Angeles, including one from the Veteran's Canteen Service (VCS), an armored courier was robbed by a gunman of the money and checks which he had collected. Defendant was interviewed the same day by the FBI. He was later charged with having committed this robbery.

Carol Fish was a government employee who worked as an administrative assistant at the VCS. She testified as to the amount of Fish's supervisor, William Mower, had been chief of the VCS for 34 years. He was familiar with the way that money at VCS was earned, kept and deposited. Also over objection, Mower testified that VCS' money belonged to the United States, as nonappropriated funds.

cash ($5,109) and checks (approximately $3,000) she gave to the courier just prior to his being robbed. Over defendant's objection, she also testified that this money belonged to the United States.

Steven Swanson, the FBI agent who had interviewed defendant, testified about his pre-arrest interview of defendant, including defendant's recitation of his activities on the day of the robbery. In his interview, defendant denied any knowledge of the VA robbery. He claimed that on that day he drove his girlfriend to work in a rental car, then went to breakfast at an unidentified restaurant and returned to his girlfriend's home to take a nap. He further claimed to have awoken from his nap around one or two o'clock p.m. and discovered that his rental car was missing. Defendant claimed that he then went to the beach with an unidentified friend. The "rental car" was later identified as the getaway car used in the robbery. Defendant did not take the stand.

At the close of the evidence, the trial court denied defendant's request for an alibi instruction. It ruled that Agent Swanson's testimony of defendant's pre-arrest interview "was not an alibi, just the Defendant's statement to the police officer and that's self-serving. That's not an alibi."

The jury returned a verdict of guilty on all counts. Defendant was sentenced as a career offender to a term of imprisonment of 270 months, consisting of a concurrent sentence on Counts 1 and 2 of 210 months and a consecutive sentence on the gun count, Count 3, of 60 months. This appeal followed. We have jurisdiction over this timely appeal under 28 U.S.C. Sec. 1291.

II DISCUSSION

A. Evidentiary Rulings

An essential element of 18 U.S.C. Sec. 2114, one of the crimes of which defendant was convicted, is that the money taken in the robbery was "property of the United States." Defendant contends that the district court abused its discretion in permitting lay witnesses to give opinion testimony of the ownership of the money taken in the robbery. Evidentiary rulings are reviewed for abuse of discretion. United States v. Tham, 960 F.2d 1391, 1397 (9th Cir.1991).

It is not at all clear that the testimony of Fish and Mower that the stolen money belonged to the United States was opinion testimony. See Fed.R.Evid. 701, Advisory Committee's Notes. Assuming arguendo, however, that it was, it was permissible lay opinion which satisfied the requirements of Rule 701. Both witnesses were government employees who were familiar with the operation of VCS and handled (or supervised) VCS' deposits as a part of their employment duties. Thus, these "opinions" were "rationally based on the perception of the witnesses." Id. The employment experience of these witnesses provides a sufficient basis from which they could rationally infer that the stolen deposits were property of the United States. The rule requires nothing more. Permitting Fish and Mower to testify as to who owned the stolen funds was not an abuse of discretion.

B. Alibi Instruction

Defendant contends that the district court erred in refusing to give a requested alibi instruction.

We recently clarified the appropriate standard of review of a district court's denial of a defendant's requested jury instruction. In United States v. Duran, 59 F.3d 938 (9th Cir.1995), we held that "the standard is dependent on the issue for review." Id. at 941. Parties may dispute whether the required factual foundation exists to support a requested jury instruction. In such cases, we review for abuse of discretion. Id. However, in other instances, the parties may dispute a legal, rather than a factual, determination by the trial court. In such cases, we review de novo. Id. In Duran, we applied a Defendant contends that the trial court erred in refusing to give the requested alibi instruction after a prosecution witness testified about defendant's pre-arrest statement concerning his whereabouts at the time of the crime. ¹

                de novo standard, because the parties had raised a legal issue:  did the instructions given adequately cover the defendant's theory of the case?  Id.  See also United States v. McGeshick, 41 F.3d 419, 421 (9th Cir.1994) ("Failure to instruct the jury on an appropriate defense theory is a question of law reviewed de novo."  (citation omitted)).  Similarly, this case raises a question of law:  must the district court give an alibi instruction when the prosecution, as opposed to the defense, introduces the evidence of alibi?   Consequently, we conclude that the district court's decision not to give a requested alibi instruction is subject to de novo review
                

"A defendant is entitled to have the judge instruct the jury on his theory of defense provided that it is supported by law and has some foundation in the evidence." United States v. Mason, 902 F.2d 1434, 1438 (9th Cir.1990). "An alibi instruction is critical because a juror, unschooled in the law's intricacies, may interpret a failure to prove the alibi defense as proof of the defendant's guilt. To avoid this possibility, '[w]here alibi is the defense[,] a suitable alibi instruction must be given when requested.' " United States v. Zuniga, 6 F.3d 569, 570 (9th Cir.1993) (citation omitted) (emphasis in original) (quoting United States v. Hoke, 610 F.2d 678, 679 (9th Cir.1980)).

In United States v. Ragghianti, 560 F.2d 1376 (9th Cir.1977), we held that " 'when the accused produces testimony that he was elsewhere at the time' " of the alleged crime, and he requests an instruction as to the burden of proof of his alibi, the instruction must be given. Id. at 1379 (citing United States v. Marcus, 166 F.2d 497, 503-04 (3d Cir.1948)).

The government argues that Ragghianti is inapplicable because in the instant case the accused did not present the evidence of alibi--the government itself introduced defendant's statement that he was napping and walking to the beach with a friend at the time the crime was committed. This evidence was introduced not to prove an alibi, but rather because of its obvious falsity.

The Ninth Circuit has not addressed whether an alibi instruction is required where the government, as opposed to the defendant, introduces the evidence that supports the alibi theory. Whereas the language in Ragghianti suggests that an instruction might be necessary only when "the accused produces testimony" of alibi, 560 F.2d at 1379, language in other cases, such as Mason, suggests that an instruction is necessary whenever the alibi defense "has some foundation in the evidence." 902 F.2d at 1438.

The only two circuits that have addressed this issue have both concluded that a trial court's refusal to give the instruction in these circumstances constitutes error. United States v. Webster, 769 F.2d 487 (8th Cir.1985); United States v. Hicks, 748 F.2d 854 (4th Cir.1984).

The facts in Hicks were remarkably similar to those in the instant case. Defendants Hicks and three others were accused of armed bank robbery. When Hicks was arrested, he denied being with the other defendants at the time of the crime. He claimed he had spent the entire time with his girlfriend, except for a quick trip across the street to obtain some liquor. Neither Hicks nor the girlfriend, with whom he allegedly spent the day, testified at trial. However, the government introduced Hicks' post-arrest denials as evidence of a false exculpatory statement evidencing consciousness of guilt. Based on this evidence alone, Hicks requested an alibi instruction, which the trial court refused to give. Id. at 856-57.

The Fourth Circuit concluded that by offering evidence of a false exculpatory statement, the government put the truth of the statement in issue and effectively provided The reasoning in Hicks and Webster is sound and consistent with Ninth Circuit precedent. By offering defendant's statement that he was elsewhere at the time of the crime, even as evidence of a false exculpatory statement, the government put the truth of that statement in issue. Once the alibi issue was raised, a juror could have interpreted defendant's failure to prove his alibi as proof...