U.S. v. Monks
| Decision Date | 21 October 1985 |
| Docket Number | 84-1199,Nos. 84-1187,s. 84-1187 |
| Parties | 19 Fed. R. Evid. Serv. 717 UNITED STATES of America, Plaintiff-Appellee, v. Charles Eugene MONKS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Gary A. HOLT, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Jon Rick Cooper, Asst. U.S. Atty., Tucson, Ariz., for plaintiff-appellee.
Nancy Postero, Keller & Postero, Tucson, Ariz., for C. Monks.
Jeffrey D. Bartolino, Tucson, Ariz., for G. Holt.
Appeal from the United States District Court for the District of Arizona.
Before DUNIWAY and CHOY, Senior Circuit Judges, and FARRIS, Circuit Judge.
Charles Eugene Monks and Gary A. Holt were convicted of bank robbery in violation of 18 U.S.C. Sec. 2113(a) and Sec. 2. This is a consolidated appeal from their convictions.
The Union Bank in Arizona was robbed by a lone gunman on December 6, 1983. At trial, James White, a convicted bank robber and informant, testified that Holt and Monks came to his mother's apartment on December 6, and Monks told him that he and Holt had just robbed the Union Bank using the car of a friend, Marilyn Daniels. White testified that Holt brought in some clothes which he asked White to destroy and also brought in a bag of money which Monks divided into two stacks.
A few days after the robbery, White told FBI Agent Gosting about Holt's and Monks' visit and turned over the clothes and money wrapper sticks he had gotten from them, and a gun Holt had left with Daniels. Gosting procured an arrest warrant based in part upon White's revelations, describing White as a "reliable citizen." While Holt and Monks were being held in a correctional center after their Three bank tellers testified that Holt was the bank robber. Two were positive of their identification. Nine days after the robbery, they had each picked Holt's picture out of a photo lineup presented by Gosting after he first showed them a bank surveillance photograph of the robber. During their testimony, two of them inadvertently referred to the lineup photographs as "mugshots."
arrest, a correctional officer overheard Monks telling Holt that the only thing Holt had to worry about was getting identified by the camera in the bank and, after a pause with no response from Holt, that he (Monks) was going to try to make them think he was crazy.
Although the prosecutor had discussed expected incriminating (to Holt) testimony from a Jan Schwartz in his opening argument, the judge later decided to exclude her testimony. Holt was not allowed to cross-examine White about a prior burglary he might have committed with Monks and a man named "Carlos," who fit the bank robber's general description.
Monks and Holt each moved to have their trials severed both pretrial and during trial. The district court denied their motions.
1) Did the district court err in denying Monks' claims for severance on the grounds that a) the evidence of Holt's guilt was so overwhelming that it would "rub-off" onto Monks, b) severance was needed to allow him to cross-examine Holt about the conversation in the correctional center?
2) Did the district court err in allowing a) Monks' statement to White that he and Holt had just robbed the bank and b) Monks' comments to Holt at the correctional center, to come in against Holt as adoptive admissions?
3) Did the Bruton doctrine require that Holt be granted a severance to protect his right to confront Monks as to Monks' statements mentioned in issue No. 2) above?
4) Was Holt erroneously barred from cross-examining White as to the prior burglary? (Did the district court err in not granting Holt a severance so that he could conduct that cross-examination without incriminating Monks?)
5) Did the district court abuse its discretion in failing to exercise its supervisory power to dismiss the charges against Monks because of Gosting's alleged misrepresentation to the magistrate (who issued the Monks arrest warrant) that White was a "reliable citizen"?
6) Did the district court abuse its discretion in refusing to grant Holt a mistrial because of the two inadvertent references to the lineup photos as "mugshots"?
7) Given that the prosecutor had already mentioned Schwartz' testimony in his opening argument, did the district court abuse its discretion in refusing to grant Holt a mistrial when it decided to exclude the testimony?
8) Should the in-court and out-of-court identifications of Holt by the tellers have been excluded because they were the product of an unduly suggestive photo-lineup procedure and unreliable?
Monks' Claims for Severance (Issue No. 1)
Monks claims that he should have been granted a severance because the evidence of Holt's guilt was so overwhelming in comparison with the evidence of Monks' guilt that Holt's guilt would "rub-off" onto Monks because the jury would be unable to keep the evidence separate. This circuit holds that "joinder is the rule rather than the exception and that the burden is on the defendant in his appeal following denial of the motion to sever to show that joinder was so manifestly prejudicial that it outweighed the dominant concern with judicial economy." United States v. Armstrong, 621 F.2d 951, 954 (9th Cir.1980).
Regarding Monks' specific contention, this circuit has ruled that a defendant is not entitled to a severance merely because the evidence against a codefendant is more damaging than the evidence against him. See United States v. Gaines, 563 F.2d 1352, 1355 (9th Cir.1977). "While a great disparity in proofs may be sufficient to allow a severance in certain cases, the prime consideration is whether the jury can reasonably be expected to compartmentalize the evidence as it relates to separate defendants in the light of its volume and the limited admissibility." Id.
First, Monks waived this ground for severance by failing to renew his motion for severance at the close of evidence. Gaines, 563 F.2d at 1356. Although he had earlier moved for severance on this ground, his claim is based on an alleged disparity in the amount of evidence to be produced at trial. This court has stated that:
Where prejudice from joinder appears in the course of trial, it has been held that the request for severance must be renewed at the close of the evidence or it will be treated as waived. Appellant did not renew his request for severance at that point. His failure to do so at least suggests that the prejudice now asserted to have resulted from the joinder may not have seemed so substantial to appellant in the context of trial....
Williamson v. United States, 310 F.2d 192, 197 (9th Cir.1962) (footnotes omitted); see also United States v. Kaplan, 554 F.2d 958, 966 (9th Cir.) (per curiam) (), cert. denied, 434 U.S. 956, 98 S.Ct. 483, 54 L.Ed.2d 315 (1977).
Even if Monks' motion had been diligently pursued, however, it must fail on the merits because the jury should have had no difficulty compartmentalizing the evidence. The evidence was straightforward and relatively easy to follow. See Williamson, 310 F.2d at 198. All of the evidence was presented in only two days of trial. The three eyewitness identifications by the tellers implicated Holt only and could not have been confused with evidence as to Monks' guilt. The only evidence linking Monks to the robbery came from White's and Daniel's testimony and the testimony about the conversation between Monks and Holt at the correctional center. The jury should have had no problem keeping evidence of Monks' indirect involvement separate from evidence of Holt's direct participation in the robbery.
Finally, the judge took steps to eliminate the potential for prejudice inherent in a joint trial by instructing the jury both during trial and at the close of trial that evidence against one defendant should be considered only against that defendant and that it was their duty to give separate personal consideration to the case of each individual defendant. See United States v. Kennedy, 564 F.2d 1329, 1334 (9th Cir.1977) (), cert. denied, 435 U.S. 944, 98 S.Ct. 1526, 55 L.Ed.2d 541 (1978).
In sum, the district court did not abuse its discretion, see United States v. Abushi, 682 F.2d 1289, 1296 (9th Cir.1982) (standard of review), in denying Monks' motion for severance based on his "rub-off" theory.
Monks also relies on Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), to attack the court's failure to sever. Monks objects to the admission of the conversation between him and Holt at the correctional center because he was unable to cross-examine Holt about the conversation as Holt did not take the stand. However, Monks' Bruton claim is misplaced. It was Monks' portion of the conversation that incriminated him, not Holt's. It was Monks who said Therefore because Monks had no right to cross-examine Holt, severance was not required. 1
Holt claims that Monks' statements to White that he and Holt had just robbed the bank and Monks' comments to Holt at the correctional center were hearsay improperly admitted into evidence as adoptive admissions. He also contends that this raises problems under the Bruton doctrine and thus mandates severance.
Before admitting a proffered admission by silence under Fed.R.Evid. 801(d)(2)(B), the district court must first find that sufficient foundational facts have been introduced for the jury reasonably to conclude that ...
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