U.S. v. Parker

Decision Date10 January 1977
Docket Number76-1312 and 76-1728,Nos. 75-3649,s. 75-3649
Citation549 F.2d 1217
Parties1 Fed. R. Evid. Serv. 584 UNITED STATES of America, Appellee, v. Donald Eugene PARKER, Appellant. UNITED STATES of America, Appellee, v. Nicholas FAITHE, Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

Peter G. Keane (argued), of Keane & Keane, San Francisco, Cal., for appellant in Nos. 75-3649 and 76-1312.

Michael J. Keady (argued), San Francisco, Cal., for appellant in No. 76-1728.

Lawrence Edelman, Asst. U.S. Atty. (argued), San Francisco, Cal., for appellee.

Before MERRILL and WRIGHT, Circuit Judges, and PALMIERI, * District Judge.

PALMIERI, District Judge:

Defendant Parker was indicted on four counts of armed bank robbery 1 (Counts I-IV) and one count of bank larceny 2 (Count V). Defendant Faithe was indicted on one count of armed bank robbery (Count IV). Count IV was subsequently severed. Parker was convicted by a jury on Counts I III, and V, and at a later trial Parker and Faithe were convicted by a jury on Count IV. Both defendants appeal raising separate and distinct issues.

The evidence adduced at the two trials, construed in the light most favorable to the Government, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942); United States v. Glover, 514 F.2d 390 (9th Cir.), cert. denied, 423 U.S. 857, 96 S.Ct. 108, 46 L.Ed.2d 83 (1975), established that on three dates in July 1975 Parker and another armed man entered banks in California, collected money from cash drawers at various tellers' windows, and then fled. For each robbery Parker was identified by eyewitnesses or bank surveillance photographs or a combination of both. The evidence also established that on another occasion in July 1975 Parker entered a California bank which he had visited earlier on that day and presented a bill in Chinese currency to a teller to be converted into dollars. After waiting a few moments, he ran down to the last counter, grabbed the money out of the hands of the teller standing there, and ran out the front door of the bank. Parker was positively identified by eyewitnesses and fingerprints found on the counter at the bank. The evidence showed that Parker fled the scene in the same automobile that he used to flee after one of the bank robberies.

The evidence against Faithe at the trial of Count IV established that he was the bearded white male who accompanied Parker during the July 24, 1975 armed bank robbery. Although Parker was positively identified by eyewitnesses, bank photographs, and fingerprints, the identification of Faithe was less clear and much bruited at the trial. Nine bank witnesses testified, each of whom had attended a line-up five days before the trial. While only three witnesses identified Faithe at the line-up, six witnesses later identified him at the trial. These witnesses testified that the robber had a beard. A counsellor from a drug treatment clinic testified that Faithe was clean shaven on the day before the robbery.

In order to link Faithe to Parker, the Government introduced Parker's wedding certificate to show that Faithe was a witness at Parker's wedding approximately two months before the robbery and that both had given the same address at that time. A used car dealer, Bagaw, testified that two days after the robbery he sold a car to Parker who was accompanied by a white male whom Bagaw was unable to identify. This white male had asked Bagaw if the car could be driven to New York. There was evidence that Faithe was born in New York, and the Government argued that the jury could infer from this evidence that Faithe was Parker's companion two days after the robbery.

Parker's Confession

Parker argues that his convictions on Counts I, III, and V should be reversed because they were based on his involuntary confession made shortly after his arrest. We disagree. It is undisputed that Parker, a heroin addict with a $300 a day habit, was arrested about 2 a. m. on August 4, 1975, taken to the Albany Police Station, and questioned by federal agents from 3 a. m. to 7 a. m. During that questioning, Parker confessed to the five charges contained in the indictment as well as many other crimes. No stenographic or tape recording was made of the interview, and there was a dispute as to whether Parker was threatened with physical force or promised drugs by the officers if he cooperated.

In accordance with the mandate of Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964) and 18 U.S.C. § 3501, the trial court conducted a pre-trial hearing to determine the voluntariness of Parker's confession. Based on the testimony of Parker and the officers present at the questioning, the trial judge determined that the confession was voluntary. The trial court's determination of voluntariness may not be disturbed on appeal unless it was "plainly untenable" United States v. Tanks, 464 F.2d 547, 548 (9th Cir. 1972) or "clearly erroneous," United States v. Maxwell, 484 F.2d 1350, 1352 (5th Cir. 1973). Due regard must be given to the trial judge's opportunity to view the demeanor of the witnesses and assess their credibility, Wright v. North Carolina, 483 F.2d 405, 408 (4th Cir. 1973), cert. denied, 415 U.S. 936, 94 S.Ct. 1452, 39 L.Ed.2d 494 (1974).

Parker's arguments on appeal are a substantial repetition of those made to the trial judge and rejected by him. Parker urges this court to reassess the evidence presented to the trial court and reach a conclusion contrary to that made below. His arguments, however, fail to demonstrate clear error by the trial court, and, thus, the trial court's finding of voluntariness is affirmed. 3

The Warrantless Arrest

Parker also contends that the government agents' failure to obtain an arrest warrant vitiated his arrest and rendered his subsequent confession illegal. Parker does not dispute that the agents had probable cause to arrest him, but asserts that they should have obtained a warrant in the approximately 34 hours between the time that they became aware of his whereabouts and the time of the arrest. This argument has no merit. While it is preferable for law enforcement officers to obtain arrest warrants where feasible, Beck v. Ohio,379 U.S. 89, 96, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); Wong Sun v. United States, 371 U.S. 471, 479-82, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), an arrest supported by probable cause should not be invalidated solely because the officers failed to secure a warrant, Gerstein v. Pugh, 420 U.S. 103, 113, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975); United States v. Hofman, 488 F.2d 287 (5th Cir. 1974). Although Parker argues that the officers had ample opportunity to obtain an arrest warrant, this argument, even if true, does not invalidate his arrest, United States v. Burnett, 526 F.2d 911 (5th Cir.), cert. denied,425 U.S. 977, 96 S.Ct. 2179, 48 L.Ed.2d 801 (1976). 4

The Prosecutor's Closing Argument in the Case of Parker

Finally Parker argues that his conviction on Count IV should be reversed on the ground that the prosecutor improperly commented on his failure to testify. Parker had walked in front of the jury solely for the purpose of displaying his gold capped tooth, a feature of his appearance which none of the eyewitnesses had testified about in identifying him as the robber. 5 Although the prosecutor's statement did not directly deal with Parker's failure to take the stand, it did refer to his silence and, thus, was improper. Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). While it was entirely appropriate for the prosecutor to argue to the jury that Parker's tooth might have been capped after the robberies took place, it was improper for him to comment on what Parker "failed to state" or "didn't tell us." The error, however, does not require reversal of the conviction because it was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). The comment was not extensive, it did not stress any inference of guilt from Parker's silence, and there was no substantial evidence that could have supported an acquittal. Anderson v. Nelson, 390 U.S. 523, 88 S.Ct. 1133, 20 L.Ed.2d 81 (1968); Scarborough v. Arizona, 531 F.2d 959, 962 (9th Cir. 1976).

The Evidence of Faithe's Heroin Addiction

Faithe raises four contentions on this appeal none of which is sufficient to warrant reversal of his conviction.

Faithe's main argument is based on the admission of evidence concerning his heroin addiction which he argues was improper and highly prejudicial. Faithe's addiction came into the case through the admission in evidence of a business record of a drug treatment clinic to which Faithe had reported on the day before the robbery. A drug counsellor at the clinic had testified that Faithe was clean shaven on that date. Eyewitnesses to the robbery testified that the robber had a beard. The evidence showed that this drug counsellor had only seen Faithe on one occasion some nine months before the trial and that this counsellor routinely saw 40 to 50 persons a week.

The trial judge understandably sought out the clinic's written record of Faithe's visit as more reliable evidence of the date of his appearance. This document established that Faithe had been addicted to heroin for approximately ten years and that he had been instructed to return to the clinic the next day (the day of the robbery), but had failed to do so. Faithe introduced the document in evidence assertedly as a tactical move because he believed that the court would permit the Government to introduce it and he wanted to "take the sting out of it." Having made that tactical decision, Faithe cannot now complain that the prosecution was able to argue that the evidence of Faithe's addiction created an inference that he needed money and suggested a motive for the bank robbery.

Under appropriate circumstances, evidence of narcotics dealings is...

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