U.S. v. McMillian, s. 75-1900 and 75-1905
| Citation | 535 F.2d 1035 |
| Decision Date | 16 June 1976 |
| Docket Number | Nos. 75-1900 and 75-1905,s. 75-1900 and 75-1905 |
| Parties | UNITED STATES of America, Appellee, v. Melvin McMILLIAN, Appellant. UNITED STATES of America, Appellee, v. Donald Jay CUBEAN, Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (8th Circuit) |
Michael H. Irvine, Cedar Rapids, Iowa, for appellants.
Alan H. Kirshen, Asst. U. S. Atty., Evan L. Hultman, U. S. Atty., Sioux City, Iowa, for appellee.
Before LAY, ROSS and STEPHENSON, Circuit Judges.
Donald Jay Cubean and Melvin McMillian appeal from their convictions for robbery of the Rath Employees Credit Union in Waterloo, Iowa. The jury found both defendants guilty of three counts of violating the Federal Bank Robbery Act, 18 U.S.C. §§ 2113(a), (b) and (d); one count of using a firearm in the commission of a felony, 18 U.S.C. § 924(c); and one count of conspiracy to commit the offenses in violation of 18 U.S.C. § 371. Defendant Cubean was also convicted of interstate transportation of stolen property under 18 U.S.C. § 2314.
The evidence established that Cubean, McMillian and John Gaines, an accomplice who testified for the government, entered the credit union, pistol whipped at least one of the employees and took cash and travelers checks from the office. At trial, the government called nine witnesses who were in the bank at the time of the robbery, seven of whom identified either Cubean or McMillian or both as the robbers. The government offered to call other eyewitnesses, but the trial court determined that their testimony was unnecessary since they could not identify the defendants. The court ordered the defense not to comment in final argument on the government's failure to put all the eyewitnesses on the stand. Both defendants took the stand and denied participating in the robbery.
On appeal, defendants urge that the trial court erred in: 1) denying a motion for pretrial production of the names and addresses of eyewitnesses and information on their ability to identify the defendants at a lineup; 2) denying a motion at trial for a list of eyewitnesses who were unable to make a positive identification; 3) ordering the defense not to comment in final argument on the government's failure to call all the witnesses; 4) admitting evidence of other crimes; and 5) failing to dismiss for insufficient evidence. 1
The Brady Issue.
Eight days before trial, defendants moved, under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), for production of the names and addresses of lineup participants, a photograph of the lineup, the names and addresses of the witnesses, and information on whether the witnesses were able to make positive identifications. The trial court did not rule on this motion before trial. After the first government witness testified at trial, the government gave the defendants the Jencks Act statements of the witnesses it was prepared to call. When the district court later instructed the government not to call the last five of those witnesses, the defense requested a name and address list of the witnesses not yet called. This motion was denied.
The defendants rely on Evans v. Janing, 489 F.2d 470, 477 (8th Cir. 1973), in which this court recognized that the inability of a witness to make any identification would be useful to a defendant. They urge that it was error not to require the government to produce the names of all persons who viewed the lineup, including those persons who were unable to identify either defendant.
In view of the government's disclosure of the names and statements of these witnesses at trial, we are unable to understand how the trial court's ruling prejudiced the defendants. Defendants urge that they were prejudiced by being given this information during rather than before trial. However, the defendants did not seek a continuance to interview these witnesses and no order of the court prevented defendants from subpoenaing the witnesses and calling them to testify. Furthermore, after trial, there was no attempt to interview the witnesses to learn whether they possessed any evidence which might otherwise be considered helpful to the defense on motion for a new trial. We conclude that defendants have made no showing of prejudice. Cf. United States v. Webster, 490 F.2d 435, 437-38 (8th Cir. 1974).
Defendants' basic complaint appears to be that the district court prevented them from arguing that the government's failure to call the eyewitnesses raises an inference that their testimony would have been unfavorable to the government's case. The difficulty with this argument, as the government points out, is that these witnesses were as available to the defendants as they were to the government. 2
Other Crimes Evidence.
At trial, the government was permitted to use evidence of two other crimes, one as substantive evidence and the other for impeachment of Cubean. First, accomplice John Gaines testified over defendants' objections that Cubean, Gaines and an individual named Fletcher robbed the Annis Petroleum company during the week prior to the Rath Credit Union Robbery. Gaines described that robbery and stated that Cubean had asked him to participate in the Rath robbery. Gaines said that he initially declined, and then Cubean went to Kansas City to get McMillian to help him commit the Rath robbery. Later Gaines agreed to join them.
It is well settled that evidence of other criminal conduct is inadmissible unless it is relevant to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Fed.R.Evid. 404(b). See also United States v. Bledsoe, 531 F.2d 888 (8th Cir., Filed Feb. 24, 1976); United States v. Conley, 523 F.2d 650, 653 (8th Cir. 1975); United States v. Cochran, 475 F.2d 1080, 1082 (8th Cir.), cert. denied, 414 U.S. 833, 94 S.Ct. 173, 38 L.Ed.2d 68 (1973). Such evidence may be admitted only if
(1) an issue on which other crime evidence may be received is raised; (2) . . . the proffered evidence is relevant to that issue; (3) . . . the evidence is clear and convincing; and (4) . . . the probative worth outweighs the probable prejudicial impact.
United States v. Conley, 523 F.2d 650, 653-54 (8th Cir. 1975).
The "other crime" must also "involve an offense similar in kind and reasonably close in time to the charge at trial." United States v. Clemons, 503 F.2d 486, 489 (8th Cir. 1974).
Here, the government urges that the evidence was relevant to identity, since Cubean participated in both robberies and the same gun was used in both robberies. The government urges that the evidence was...
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