U.S. v. Mitchell

• Citation: 172 F.3d 1104
• Decision Date: 26 March 1999
• Docket Number: 97-10427,Nos. 96-10411,s. 96-10411
• Parties: 99 Cal. Daily Op. Serv. 2205, 1999 Daily Journal D.A.R. 2892 UNITED STATES of America, Plaintiff-Appellee, v. Tony Julius MITCHELL, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Tony Julius Mitchell, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1104

172 F.3d 1104

99 Cal. Daily Op. Serv. 2205, 1999 Daily

Journal D.A.R. 2892

UNITED STATES of America, Plaintiff-Appellee, v. Tony Julius MITCHELL, Defendant-Appellant.

United States of America, Plaintiff-Appellee, v. Tony Julius Mitchell, Defendant-Appellant.

Nos. 96-10411, 97-10427.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 12, 1998.

Decided March 26, 1999.

Terry Gross, Friedman, Sloan & Ross, San Francisco, California, for defendant-appellant.

Marcia Jensen, Assistant United States Attorney, San Jose, California, for plaintiff-appellee.

Appeals from the United States District Court for the Northern District of California; Ronald M. Whyte, District Judge, Presiding. D.C. No. CR-96-20020-RMW.

Before: WALLACE, T. G. NELSON and KLEINFELD, Circuit Judges.

KLEINFELD, Circuit Judge:

We reverse because inadmissible evidence regarding the defendant's poverty was admitted and relied upon heavily to secure a conviction.

FACTS

A bank was robbed at gunpoint, and Mitchell was convicted of the robbery. The only issue at trial was whether Mitchell was the man who did it, or was mistakenly identified. There were weaknesses in the prosecution evidence. Mitchell was easily located from the license plate number and his father, who readily told the police how to find him when asked, yet the police did not contact Mitchell for three months after the robbery. The usual strong evidence of bank robbery--dye pack marks on the robber's body and clothing, marked money found on the robber or people he bought things from, bank videotape or film of the robber, were all lacking. The tellers' descriptions of the robber varied, and several did not fit Mitchell. The witnesses said the robber had no facial hair, but those who knew Mitchell said he always had a beard, mustache or both.

There were also some strengths to the prosecution case. The police found clothes, backpack and a fanny pack in Mitchell's closet that matched the descriptions of what the robber had. One of the eyewitnesses was confident about her identification and had properly picked Mitchell from a police photographic array. The most persuasive evidence was that this witness, who had been outside the bank when it was robbed, had noted the license plate number on the robber's car, and it matched Mitchell's car.

I. ANALYSIS

Mitchell argues that the district judge erred in denying a new trial based on newly discovered evidence of an alibi. We do not reach this issue because of our resolution of the evidence issue. Likewise we do not reach issues he raises concerning ineffective assistance of counsel, and unduly suggestive in-court identification. Mitchell is entitled to a new trial because the district court erroneously admitted evidence of his poverty.

A. The evidence at issue.

As indicated above, the prosecutor faced some difficulties in proving that Mitchell was the robber. One of the devices she used was to show that Mitchell had motive: he needed the money because he was poor. This evidence was a major part of the trial.

Before trial started, the prosecutor said she intended to prove that Mitchell was poor in order to show that he had a motive to rob the bank:

This [evidence] would be offered in order to show that Mr. Mitchell was in very poor financial condition, was unemployed at the time, and as [Mitchell's counsel] indicated, it would be sought to be argued by the United States that that was providing the motive for him to commit the bank robbery.

At a subsequent pretrial conference, after the judge said that "just general testimony that someone is poor would be inappropriate" and asked for clarification of the prosecutor's proffer, the prosecutor said "it would not be our intent [to] introduce evidence that because the defendant is poor, he's likely to commit a crime." But she did.

The first day and a half of trial consisted of ordinary bank robbery evidence--witnesses to the bank robbery and a brief witness to establish the jurisdictional fact that the bank was federally insured. Then the case veered into poverty evidence. The prosecutor called Mitchell's landlord, to testify that Mitchell paid the rent in cash the day after the robbery, which was also the normal day the rent fell due. The landlord testified that she knew Mitchell paid his August rent in cash, not because she specifically remembered him doing so, but because "[Mitchell] always paid in cash," both the rent and the security deposit. Mitchell's testimony, unrebutted in this respect, was that the landlord had specified that payments must always be in cash because she had been burned in the past by bad checks. Mitchell never paid the September rent (the month following the robbery), and was evicted by the end of October.

Then the prosecutor called Mitchell's last boss, who said they had fired Mitchell because in his sales job he had only sold two orders, receiving $153.17 in commission. But this job was not Mitchell's only source of income. He was bringing in money through another job and self-employment. His last boss conceded that Mitchell had self-employment and another employer at the same time. Mitchell later testified that his self-employment selling football statuettes produced about $350 per month.

The prosecutor called Mitchell's father as a witness, and used him mainly to show that Mitchell could not adequately support himself and his wife and children. The father paid for his car, even though Mitchell was the only driver, and his parents helped him financially many times. The prosecutor established that Mitchell's father made Mitchell's July and August car payments. But his father always made the car payments on Mitchell's car and continued to do so after the robbery. The father said Mitchell was encouraged by his parents to come to them when he needed money, he came regularly, and they wanted him to. Although the father's testimony was also useful in tying the car to Mitchell, he was harmful to the prosecution in saying that Mitchell always had facial hair--beard, mustache or both (the witnesses testified that the robber was clean-shaven).

The government wound up its case with the FBI case agent, who tied the car to Mitchell, described the photo identifications by the eye witnesses and the clothing found in Mitchell's closet, and said Mitchell was overdrawn at his bank $274.45 on June 27 (a month before the robbery), and $51.26 on July 26 (a week before the robbery). But the bank statements introduced as evidence showed that Mitchell was overdrawn after the robbery as well as before it.

In the prosecutor's closing argument in chief, she spent most of her time on the robbery and identification evidence, but wound up with a reference to Mitchell's inability to pay his bills, reminded the jury that he paid his August rent in cash the day after the robbery, and neither Mitchell, nor his wife, nor any other defense evidence had explained where the money came from. Defense counsel focused on the weaknesses and inconsistencies in the identification evidence, and the degree to which it suggested that Mitchell was not the man who robbed the bank. He pointed out that the government case agent had run six possible combinations of numbers on the license plate, suggesting some uncertainty. Then in her rebuttal argument, when the judge's instructions were long past and defense counsel could not respond, the prosecutor hit the poverty evidence hard:

He didn't have any money. He had minus $57 in his bank account. Look at his bank records. It's about consistent for the entire time that you've got bank records for. [Mitchell's employer] came in and said, "During the course of May to September when Mr. Mitchell was an independent contractor, I paid him a grand total of $157.13," I think it was. Mr. Mitchell is staring down the face of the getting kicked out of his condominium. He doesn't have any money. His wife is not getting the usual [A.F.D.C.] money she's used to getting that month. Lo and behold, the day after the robbery, unexplained he can go in and pay the full amount of the rent in cash. It's not a coincidence. He got the money from the bank. He was unemployed. His account was overdrawn. He paid in cash.

B. The arguments.

Mitchell argues that evidence of a defendant's poverty is not admissible to show motive, citing an evidence treatise by Wigmore and several cases from other circuits such as Davis v. United States, 409 F.2d 453, 457-58 (D.C.Cir.1969), United States v. Reed, 700 F.2d 638, 642-43 (11th Cir.1983), and United States v. Zipkin, 729 F.2d 384, 390 (6th Cir.1984). The government argues that evidence of financial condition is admissible to show motive under United States v. Feldman, 788 F.2d 544, 556-57 (9th Cir.1986), United States v. Jackson, 882 F.2d 1444, 1449-50 (9th Cir.1989), and United States v. Miranda, 986 F.2d 1283, 1285 (9th Cir.1993). In her argument heading, the prosecutor also says the evidence was properly admitted under Federal Rule of Evidence 404(b). She notes that the jury was given a limiting instruction regarding use of the evidence.

1. 404(b).

The government's characterization of the evidence as admissible under Federal Rule of Evidence 404(b) to show motive is meritless. Rule 404(b) is an exception to the general rule against evidence of character to prove conduct, where evidence of "other crimes, wrongs, or acts" may be proof of motive etc. Fed.R.Evid. 404. The rule speaks only to "[e]vidence of other crimes, wrongs, or acts." Being poor is not a crime, wrong, or act. Rule 404(b) therefore has no application.

C. Relevance and prejudice.

The issue on evidence of poverty is whether it has any relevance, that is, "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed.R.Evid. 401. Of course, relevant evidence may be excluded in the discretion of the trial judge "if its probative...