U.S. v. Mills
| Decision Date | 25 May 1979 |
| Docket Number | 77-1450 and 77-1747,77-1449,Nos. 77-1448,s. 77-1448 |
| Citation | 597 F.2d 693 |
| Parties | 4 Fed. R. Evid. Serv. 1040 UNITED STATES of America, Plaintiff-Appellee, v. Barry Byron MILLS, Daniel James Cavanaugh, Robbin Lynn Bryan Cavanaugh, Martin Trevino Vargas, Jr., Defendants-Appellants. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Michael B. Read, Sacramento, Cal., Roger K. Vehrs, Fresno, Cal., Russell G. Vanrozeboom, Kingsburg, Cal., Vincent J. McGraw, Fresno, Cal., for defendants-appellants.
Dwayne Keyes, U. S. Atty., Fresno, Cal., for plaintiff-appellee.
Appeal from the United States District Court for the Eastern District of California at Fresno.
Before BROWNING and HUG, Circuit Judges, and SCHWARZER *, District Judge.
On June 8, 1976, Martin Vargas and Barry Mills entered the Mayfair Branch of Lloyd's Bank in Fresno. Vargas threatened a bank employee with a handgun and they took over $100,000 in cash. Daniel Cavanaugh drove the "get-away car". Robbin Bryan, 1 a companion of Cavanaugh, attempted to flee to Canada with Cavanaugh thereafter.
All four parties were jointly charged and tried together by jury. Vargas, Mills and Cavanaugh each were convicted of armed bank robbery, in violation of 18 U.S.C. § 2113(d). Bryan was convicted of being an accessory after the fact, 18 U.S.C. § 3. Each defendant appeals from his or her conviction on several grounds.
We affirm.
Bryan contends that the trial court erred in denying her motion to sever her trial from that of her co-defendants pursuant to Fed.R.Crim.P. 14. We disagree.
The four appellants were "alleged to have participated in the same . . . series of acts or transactions constituting the offenses charged". Therefore, the appellants were properly joined for trial pursuant to Fed.R.Crim.P. 8(b). See United States v. Adams, 581 F.2d 193, 197 (9th Cir. 1978). Because the joinder of parties was authorized by Rule 8(b), the denial of the motion for severance under Fed.R.Crim.P. 14 will not be disturbed unless Bryan can prove that the court abused its discretion; the test is whether a joint trial was so prejudicial as to require the judge to exercise his discretion in but one way. Id. at 197-98.
Bryan has failed to make the requisite showing of prejudice. The jurors could easily compartmentalize the evidence against the defendants. See United States v. Hobson, 519 F.2d 765, 772 (9th Cir.), Cert. denied, 423 U.S. 931, 96 S.Ct. 283, 46 L.Ed.2d 261 (1975). Moreover, the instructions to the jury were calculated to minimize any prejudice resulting from joinder. See Adams, 581 F.2d at 198. We find no abuse of discretion.
Bryan complains that a federal agent impermissibly commented on her right to remain silent after arrest, when the agent testified at the trial that Bryan consented to talk to the agent "on a selective basis". Bryan argues that the district court erred in denying her motion to strike the testimony.
In United States v. Haro-Portillo, 531 F.2d 962 (9th Cir. 1976), an arrested suspect voluntarily talked to a federal agent for a time, after which he refused to answer any more questions. We held that the suspect's constitutional right to remain silent was not violated when the agent testified at trial to the substance of their conversation, without commenting further on the defendant's assertion of his right. Id. at 963-64.
In the present case, the agent testified, in relevant part:
She read the forms that I had read to her; she stated she understood these rights; she did say that, at some point, she would like to talk to an attorney; I told her that she was not in the Continental United States at the time; there was no way that I could provide her with an attorney; she said she understood this, but she still desired to talk to me regarding this on a selective basis.
The witness in this case did no more than did the witness in Haro-Portillo. Bryan's rights were not violated.
Bryan contends that there was insufficient evidence to prove that she acted with "actual knowledge" of Cavanaugh's participation in the robbery, an essential element of her offense of accessory after the fact.
The verdict of the jury must be sustained if there was " 'relevant evidence from which the jury could reasonably find (the defendant) guilty beyond a reasonable doubt, viewing the evidence in light favorable to the Government' ". United States v. Rojas, 554 F.2d 938, 943 (9th Cir. 1977). Actual knowledge, as an element of the offense of accessory after the fact, may be shown entirely through circumstantial evidence. See U. S. v. Rux, 412 F.2d 331, 333 (9th Cir. 1969).
In this case, the evidence showed that Bryan purchased a car with 150 twenty-dollar bills two days after the robbery, and that she sold the car for half the purchase price two weeks later. Bryan and Cavanaugh were apprehended together as they attempted to enter Canada. The trunk of the car in which they were apprehended contained a locked briefcase with over $18,000 in cash inside. The key to the briefcase and a .357 Magnum handgun were found in Bryan's purse by border police.
There is substantial circumstantial evidence to support a finding that, beyond a reasonable doubt, Bryan had actual knowledge of Cavanaugh's participation in the robbery.
The trial court instructed the jury that Bryan could not be found guilty of the offense of accessory after the fact unless she assisted Cavanaugh with "actual knowledge of his participation in the bank robbery". Bryan requested an instruction defining "actual knowledge" as "positive knowledge in contrast to imputed or inferred knowledge". The court denied this request on the ground that it would erroneously lead the jury to believe that they could not infer actual knowledge from circumstantial evidence. We uphold the decision of the trial court.
The adequacy of the jury instructions is determined by examining the instructions as a whole. United States v. Kaplan, 554 F.2d 958, 968 (9th Cir.), Cert. denied sub nom. Stradley v. United States, 434 U.S. 956, 98 S.Ct. 483, 54 L.Ed.2d 315 (1977). The refusal to give a requested instruction will not be overturned " 'if the charge as a whole adequately covers the theory of the defense' ". Id. ().
In this case, the jury was instructed that "(a)n act is done knowingly if done voluntarily and intentionally, and not because of mistake or accident or other innocent reason". Additionally, the jury was instructed that Bryan could not be found guilty unless she acted "with the specific purpose or design to prevent or hinder apprehension, trial or punishment". Taken as a whole, the instructions regarding the requirement of actual knowledge were clearly sufficient.
Outside the presence of the jury, the government informed the court of its intent to introduce evidence of a similar bank robbery, to which Vargas had pled guilty. The trial court ruled that the evidence would be admissible for the limited purpose of proving identity or Modus operandi, as permitted by Fed.R.Evid. 404(b). Vargas contends that the court committed reversible error by failing to make a finding that the two robberies were sufficiently similar to allow admission pursuant to Rule 404(b).
No evidence of the subsequent robbery was introduced at the trial; therefore, we need not consider whether the evidence was admissible under Rule 404(b). See 28 U.S.C. § 2111; United States v. Moore, 580 F.2d 360, 363 (9th Cir. 1978).
Vargas contends that the admissibility ruling deterred him from taking the stand. The admission of the evidence under Rule 404(b) was not conditioned upon Vargas taking the stand; thus the trial court's ruling could not have deterred Vargas from taking the stand. Furthermore, Vargas did not indicate his desire to take the stand nor move to preclude impeachment by evidence of the other crime under the provisions of Fed.R.Evid. 609(a). We find no error.
Billy Harris, a convicted felon, testified against Vargas as a government witness. Vargas complains that Harris was given a reduced sentence on felony charges in exchange for his testimony and that Harris was "hostile" to Vargas. Vargas argues that Harris's credibility was so questionable that the admission of his testimony denied Vargas a fair trial.
Harris unquestionably was a competent witness. Fed.R.Evid. 601. Under present law the granting of a reduced sentence in exchange for testimony affects the weight, not the admissibility, of the testimony. Darden v. United States, 405 F.2d 1054, 1056 (9th Cir. 1969). The same is true with respect to hostility harbored by a witness against a party. See Moore, 580 F.2d at 364; United States v. Kartman, 417 F.2d 893, 897 (9th Cir. 1969). The credibility of the witness was a question for the jury.
Vargas was sentenced to twenty years in prison. The statutory maximum penalty for a violation of 18 U.S.C. § 2113(d) is twenty-five years. The sentence is within the statutory maximum and ordinarily is not reviewable. However, Vargas contends that a pretrial conference was held, at which there was some discussion of a possible plea bargain, and that the district judge indicated that a lesser sentence would be appropriate if Vargas would plead guilty. There is nothing in the record on appeal to justify this assertion by the appellant. The pretrial conference was not reported and no mention was made of this contention at the time of sentencing, nor was any post-trial motion brought, raising this contention. Vargas relies solely upon an affidavit of his attorney appended to his brief on appeal. An affidavit of the prosecuting...
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