U.S. v. Poland

• Citation: 659 F.2d 884
• Decision Date: 18 August 1981
• Docket Number: 79-1460,Nos. 79-1459,s. 79-1459
• Parties: 8 Fed. R. Evid. Serv. 1685, 9 Fed. R. Evid. Serv. 320 UNITED STATES of America, Plaintiff-Appellee, v. Michael Kent POLAND and Patrick Gene Poland, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 884

659 F.2d 884

8 Fed. R. Evid. Serv. 1685, 9 Fed. R. Evid. Serv. 320

UNITED STATES of America, Plaintiff-Appellee, v. Michael Kent POLAND and Patrick Gene Poland, Defendants-Appellants.

Nos. 79-1459, 79-1460.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 14, 1981.

Decided Aug. 18, 1981.

James Hamilton Kemper, Phoenix, Ariz., for Michael Poland.

M. Jeremy Toles, Stephens & Toles, P.C., Phoenix, Ariz., for Patrick Poland.

Michael B. Scott, Asst. U.S. Atty., Phoenix, Ariz., for U.S.A.

Appeal from the United States District Court for the District of Arizona.

Before ANDERSON and TANG, Circuit Judges, and WYATT ^*, District Judge.

PER CURIAM:

Michael Kent Poland (Mike) and Patrick Gene Poland (Pat), brothers, appeal from separate judgments entered in the United States District Court for the District of Arizona convicting each of five counts of robbery in violation of 18 U.S.C. § 2113(a) and two counts of kidnapping in violation of 18 U.S.C. § 2113(e). A jury had found the defendants guilty on all of these counts. The two defendants had been indicted jointly and tried together. We affirm the judgments of conviction.

1.

On May 24, 1977, two-driver-guards left Phoenix driving a Purolator Security, Inc. van containing currency for delivery to a number of banks in Northern Arizona. The run they were to make was routinely made every Tuesday morning leaving at seven o'clock. Beginning on Interstate Highway 17, the drivers were to drive the van north from Phoenix; their first delivery was to be to a bank in Prescott, about a hundred miles away. The van never got to Prescott. It was found the next morning, abandoned near the Bumble Bee turnoff from Highway 17, about 50 miles north of Phoenix. The currency was missing from the van.

On June 16, 1977, the body of one of the drivers was found floating in Lake Mead, about 300 miles from where the van had been left. A week later the body of the other driver was recovered in the same part of Lake Mead.

A federal grand jury at Phoenix returned an indictment against Mike and Pat on May 17, 1978. The two defendants were charged jointly in nine counts. The first five counts charged bank robbery in violation of 18 U.S.C. § 2113(a). Each of the five counts named a different bank as owner of a sum of money charged to have been taken by the two defendants. Two other counts charged the defendants with kidnapping the two drivers in violation of 18 U.S.C. § 2113(e).

Among the several others, there were pretrial motions by the defendants to suppress as evidence items seized during searches made on July 27, 1977, and on May 25, 1978. The searches were authorized by warrants issued by Judge Copple and by Magistrate Gormley. Because Judge Copple had issued most of the search warrants, he on request disqualified himself from deciding their validity. Judge Turrentine heard the matter in Phoenix on August 18, 1978, and at the conclusion denied the motions to suppress. He thereafter on August 28, 1978 filed a memorandum opinion and an order denying the motions.

On August 17, 1978, the United States Attorney filed a dismissal of the two murder counts of the indictment pursuant to leave of court.

On July 21, 1978, counsel for Mike filed a motion under Federal Rule of Criminal Procedure 21(a) for an order "changing the venue of his trial from the District of Arizona to a district wherein the defendant will be free from prejudicial pretrial publicity." At a hearing on August 8, 1978, the district court denied the motion. The motion was renewed on December 18, 1978, and at that time counsel for Pat joined in the motion. The district court then denied the motion for change of venue outside the District of Arizona but ordered the trial to be transferred within the District to Tucson, setting a January 16, 1979 trial date.

At Tucson, the indictment was assigned to Judge Frey who, on December 22, 1978, set the case for trial to begin at Tucson on January 16, 1979, before Judge Murphy (of the Southern District of New York, sitting by designation).

The trial began before Judge Murphy and a jury at Tucson on January 16, 1979. Both sides rested on February 12, following testimony by both defendants and rebuttal. The jury began deliberating on February 13 and in the early afternoon of February 14 returned a guilty verdict as to each defendant on each of the seven counts submitted.

The court imposed sentences on March 14, 1979, giving each defendant 20 years on each of the first five counts to run concurrently with each other, and giving 40 years on Count VI and 40 years on Count VII, to run consecutively and consecutive to the sentences on the first five counts, or a total sentence of 100 years of imprisonment. Fines amounting to $50,000 were imposed on each defendant.

These appeals followed.

2.

The principal argument made for appellant Pat is that there was improper intervention by the trial judge. This intervention is said to have been "in unduly interrupting both defense counsel, in criticizing and ridiculing them before the jury, and in showing extreme partisanship towards the prosecution to the extent even of assuming the role of the prosecution." The intervention is said to have "denied him (appellant Pat) a fair and impartial trial." Appellant Mike does not make this argument but in his brief he states that he joins in "any argument" made for Pat.

If we should accept the argument that the trial judge did intervene improperly to the extent that error was committed, there can be no reversal of the convictions unless we also find that the intervention significantly prejudiced the defendants. And in considering whether there was any such significant prejudice, we should look to the evidence to see whether the issue of guilt was a close one in which event prejudice from the error is more likely to have occurred or whether evidence of guilt was overwhelming in which event prejudice from the error is much less likely to have occurred. This Court stated the principle very succinctly in United States v. Allen, 431 F.2d 712, 713 (1970): "And even if it could be said that the several comments, considered as a whole, constituted error, the error could not have operated so as to prejudice significantly, the rights of the accused. The evidence of his guilt was overwhelming."

We examine the evidence, therefore, to see what the proof was of the guilt of these appellants.

3.

The evidence is clearly sufficient to support the convictions; indeed, appellants make no contention that the evidence was insufficient. The defendants did deny in their testimony that they committed the offenses. There is no dispute, however, as to the commission of the offenses, nor as to how they were committed.

Since there were no eye witnesses to the commission of the offenses, the evidence that appellants committed them was, of necessity, circumstantial. In respect of crimes of violence, this is frequently the case and is of no significance: "it is a time-tested rule in this circuit that circumstantial evidence is not inherently less probative than direct evidence." United States v. Green, 554 F.2d 372, 375 (9th Cir. 1977).

4.

Mike and Pat had been living in Phoenix for some time before May 1977. Neither had any history of sustained gainful employment, although the record contains vague references to intermittent jobs they may have held.

When Mike lost a civil personal injury action in the summer of 1976 an action he had expected to win it left him and his family in his words "destitute, practically." He could not pay his debt for property in Oregon and had to give it up. The only thing he could do was to leave Oregon. When Mike returned to Phoenix in about May or June 1976, he moved in with Pat, then with his father, and finally settled into his own apartment. He borrowed money from his wife's father and his own father. He used his father's credit cards to pay for gasoline, clothes for his family, and the like. He had past due, delinquent bills for medical and dental services.

Pat, before May 24, 1977, was equally without money. He borrowed from his father and used his father's credit cards, just as Mike had done. Pat also borrowed from his younger brother and a friend. According to their father, by May 24, 1977, Mike and Pat, between them, owed him more than $15,000.

5.

The evidence shows that for several months before May 24, 1977, Mike and Pat made preparations for the crime. These included making arrangements to impersonate Arizona Highway Patrol officers so as to be able to stop the Purolator van on the highway without arousing suspicion.

In December 1976, Mike and Pat leased two Chevrolet Malibu four-door sedans, one silver and one white, similar to those used by the Arizona Highway Patrol. They asked that the charge on the car for Mike be to the credit card of his father-in-law, and on the car for Pat to the credit card of his father. After taking possession of the cars, Mike and Pat equipped each car with a police-type siren activated by a toggle switch on the dashboard.

On February 1, 1977, Pat ordered a short wave radio "scanner" from a shop in a Phoenix suburb, an item of equipment frequently used by police. Pat also ordered a special item of scanner equipment, a digital frequency selector. A few days after February 1, 1977, Pat picked up and paid for the equipment he had ordered. Pat told the salesman to show the name of Mike on the invoice because Mike was furnishing the money. The jury could have found that Mike and Pat bought this equipment to enable them to determine at any time the number and location of highway patrol cars in the Highway 17 area north of Phoenix.

On the weekend beginning February 4, 1977, Mike and his family visited his stepsister in Flagstaff, Arizona. The stepsister's husband had formerly been a police officer. He kept a three-volume police manual on operations and procedures on open bookshelves in his house, where Mike was staying. On the...