U.S. v. Hayes

• Decision Date: 15 July 1997
• Docket Number: 96-3715,Nos. 96-3617,s. 96-3617
• Citation: 120 F.3d 739
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Thomas HAYES, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Georgianna Top BEAR, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 739

120 F.3d 739

UNITED STATES of America, Plaintiff-Appellee, v. Thomas HAYES, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Georgianna Top BEAR, Defendant-Appellant.

Nos. 96-3617, 96-3715.

United States Court of Appeals,

Eighth Circuit.

Submitted March 11, 1997.

Decided July 15, 1997.

Shannon Patrick O'Connor, Omaha, NE, argued (David R. Strickman, Federal Public Defender, on the brief), for defendant-appellant Thomas Hayes.

Stuart J. Dorman, Omaha, NE, argued, for defendant-appellant Top Bear.

Jan W. Sharp, Omaha, NE (Thomas J. Monaghan, U.S. Attorney for the district of Nebraska, on the brief), for plaintiff-appellee.

Before McMILLIAN and HANSEN, Circuit Judges, and MAGNUSON, ¹ District Judge.

HANSEN, Circuit Judge.

Thomas Hayes and Georgianna Top Bear appeal their criminal convictions of armed bank robbery and conspiracy to commit bank robbery. Hayes and Top Bear both contend that the district court ² erred by denying their motions to reveal the identity of a government witness. Additionally, Top Bear argues that the district court erred by denying her motion to suppress evidence and that the evidence was insufficient to support her convictions. We affirm.

I. Background

An indictment charged Hayes and Top Bear with armed robbery, in violation of 18 U.S.C. § 2113(a), (d) (1994), and conspiracy to commit bank robbery, in violation of 18 U.S.C. § 371 (1994). Viewing the evidence at trial in the light most favorable to the verdict, see United States v. Johnson, 114 F.3d 808, 812 (8th Cir.1997), the jury could have found the following facts. On October 20, 1995, the Farmers and Merchants State Bank in Niobrara, Nebraska, was robbed by an individual wearing a brown trench coat, a dark ski mask that completely covered the face, faded blue jeans, and white tennis shoes. Two tellers, a bank vice president, and two customers were present during the robbery, and all described the robber as a woman. At one point, the robber held a black handgun to the head of the bank vice president. The robber brought two garbage bags into the bank and dropped one at the scene. In total, $4,680 was taken.

One customer, Jimmy Dean Robinette, heard the robber's voice, believed it was familiar, and described the robber as having a Native American dialect. When the robber fled in a maroon mini van, Robinette pursued the robber and followed the mini van out of town. At the edge of town, the van turned south and a Ford Tempo pulled in front of Robinette, also apparently following the mini van. Robinette recognized the driver of the Tempo as Thomas Hayes, a patron of the bar that Robinette owned. At that moment, Robinette realized that the voice he recognized during the bank robbery was that of Hayes' wife, Georgianna Top Bear, who also was a patron of Robinette's bar. Robinette was unable to keep up with the mini van and returned to town to report the names of the persons he believed were involved in the robbery.

Chief Deputy Don Henery heard a radio broadcast advising that the bank had been robbed and that the robber was driving a maroon mini van south of town. He also heard the report that Thomas Hayes and Georgianna Top Bear were suspects. Henery knew Hayes and Top Bear were married, and he knew where they lived on rural tribal trust land. Henery drove to their residence and observed Hayes drive up in a Ford Tempo. When Hayes saw the deputy, he immediately drove away. Henery followed Hayes, who led Henery on a high-speed chase. After driving the Tempo off a four- to six-foot embankment, Hayes finally stopped his car. Hayes had his 2 1/2-year-old daughter in the car with him. Hayes told Henery that he fled because he had a can of beer in the car, in violation of the terms of his probation for a prior felony conviction. Hayes consented to a search of his car. The search produced two stocking masks, gloves, and an empty BB gun box bearing a picture of a replica .45 caliber pistol. Officers found a Wal-Mart receipt for a makeup kit, another Wal-Mart receipt for an air pistol, and yet another Wal-Mart receipt for a three-hole mask and gloves--all purchased on the morning of the robbery. Also, officers found a pawn ticket, documenting the pawn of Hayes' trailer home and several movies for $72 at a pawn shop located a few minutes away from the only Wal-Mart store in Yankton, South Dakota. According to the pawn shop owner, Hayes had pawned these items early on the morning of the robbery.

The same day, law enforcement officers secured a search warrant for the home of Hayes and Top Bear. During the search, officers seized a box of garbage bags and a loose bag found on the floor. At approximately 11:00 p.m., Top Bear arrived at the residence with a friend, Paula Larson. While an agent was explaining the procedure, that is, that he would be asking her to explain her whereabouts during the day, Top Bear offered that she had been in Yankton, South Dakota, during the day. She was eventually taken to the county jail, where she provided officers with two handwritten confessions, both of which were suppressed by the district court, because she had requested counsel and a government agent had initiated the subsequent contact which led to the confessions.

Paula Larson testified that Top Bear arrived at her home on foot at approximately 9:30 p.m. Top Bear told her that she had been driving her mother's car, experienced car trouble near Lynch, Nebraska, and had walked from there to Larson's home (approximately 30 miles). Top Bear's clothing was wet and dirty. Larson gave her some dry clothing and offered to drive Top Bear home. Larson gathered up Top Bear's dirty clothing and put them in grocery bags. When they approached Top Bear's home, they saw lights and police cars at the premises. Top Bear told Larson, "Just keep going." (Trial Tr. at 401.) Larson drove past the residence, but they decided to return. Top Bear said, "I might as well go back and face it." (Id.) Top Bear left the clothing in Larson's car. Larson asked Top Bear if she wanted the clothing, and Top Bear said she did not. Larson permitted the officers to search her vehicle. Law enforcement officers seized the clothing from Larson's car, and the district court denied Top Bear's motion to suppress this evidence.

At trial, Top Bear's mother, Mrs. Red Blanket, testified that Top Bear had not borrowed her car on October 20, 1995, contrary to what Top Bear had told Larson. Mrs. Red Blanket had not owned a car since March of that year. She further testified that Top Bear had called her after being arrested and requested her to provide a false alibi. Top Bear asked her mother to tell the police that they had been together at Winner, South Dakota, on the day of the robbery. In fact, Mrs. Red Blanket had not been with Top Bear at all on that day.

The money from the robbery was not found until April 5, 1996. A heavy equipment operator found the money in a red and white cooler, lying in a roadside ditch south of Niobrara where he was grading the road. He had spotted the cooler when he was grading the road in early November as well but had not stopped to pick it up at that time. The cooler also contained a can of peanuts and some other small items. A fingerprint expert examined the can of nuts and determined that fingerprints on it matched those of Georgianna Top Bear.

On the evening before the robbery, Ted Harris's maroon mini van was stolen from the parking lot of a bar in Lindy, Nebraska, which is approximately 15 miles from Niobrara. Harris immediately reported the van stolen and said that at the time of its theft, a pair of leather gloves and an empty red and white square cooler were inside the van. The mini van was found the day after the robbery in a building on an abandoned farm lot, approximately four or five miles south of Niobrara. Hair samples were taken from the van, but none matched the known hair samples of Top Bear or Hayes.

The United States provided the defendants with investigative reports concerning this case. Included was an FBI report containing a witness's statement that three men had contacted him about participating in a future bank robbery in Niobrara. The three men allegedly involved were named in the report, but the witness was not identified. Two days after the trial of this case had commenced, Hayes and Top Bear filed a motion to reveal the identity of the witness. The district court denied the motion, holding that it was not timely and that the defendants had made an insufficient showing that the evidence would be exculpatory.

The jury convicted both defendants on both offenses. The district court sentenced Top Bear to a term of imprisonment of 88 months on the armed robbery count and a concurrent 60-month term of imprisonment on the conspiracy count. Hayes was sentenced to a term of 121 months of imprisonment on the armed robbery count and a concurrent 60-month term on the conspiracy count. Both defendants appeal.

II. Discussion

Hayes and Top Bear argue that the district court erred in denying their motion to require the government to reveal the identity of an informant. The informant had reported to the FBI that three named individuals had discussed with him the idea of robbing the Niobrara bank. The defendants contend that the government's refusal to disclose the identity of the informant violated their due process rights as articulated in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The district court denied the motion to compel disclosure, first noting that the motion was untimely. The information that this witness had identified three possible suspects and given their names was provided to the defendants in November 1995, and the defendants did not move for disclosure of the witness's identity until June 19, 1996--the second day of trial. Second, the district court concluded that there was not a sufficient showing that the government had withheld any material exculpatory evidence.

The...