U.S. v. Poole

• Decision Date: 17 December 1986
• Docket Number: No. 84-5195,84-5195
• Citation: 794 F.2d 462
• Parties: , 21 Fed. R. Evid. Serv. 66 UNITED STATES of America, Plaintiff-Appellee, v. Robert James POOLE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 462

794 F.2d 462

55 USLW 2138, 21 Fed. R. Evid. Serv. 66

UNITED STATES of America, Plaintiff-Appellee, v. Robert James POOLE, Defendant-Appellant.

No. 84-5195.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Aug. 5, 1985.

Decided July 14, 1986.

As Amended on Denial of Rehearing and Rehearing En Banc Dec.

17, 1986. ^*

Duane J. Deskins, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.

Brad Brian, Los Angeles, Cal., for defendant-appellant.

Appeal from the United States District Court for the Central District of California.

Before SKOPIL and CANBY, Circuit Judges, and SOLOMON, District Judge ^*.

CANBY, Circuit Judge:

Robert James Poole was convicted of violating 18 U.S.C. Sec. 2113(a) by robbing the Culver City branch of the First Federal Savings Bank of California. Poole was indicted and tried on three counts of bank robbery; the jury was unable to reach a verdict on two counts. On appeal, Poole contends that the trial court should have suppressed the evidence that Poole gave a false name to an FBI agent. Also, Poole contends that the trial court abused its discretion in excluding expert testimony on the unreliability of eyewitness identifications. We conclude that the district court did not abuse its discretion in excluding this evidence. We conclude, however, that the government obtained the false name evidence in violation of the fifth amendment. Because the error in admitting this evidence was not harmless, we reverse the conviction and remand.

BACKGROUND

On February 15, 1984, Poole was arrested on two charges of robbing savings and loan associations in Gardena and Pasadena, California. Eyewitnesses had identified Poole as one of the robbers from a photospread prepared by Special Agent Jon Uda of the Federal Bureau of Investigation. On the day of the arrest, after Poole was placed in the custody of the Gardena Police Department, Special Agent Uda interviewed Poole about the robberies. At the outset, Special Agent Uda advised Poole of his Miranda rights. Poole refused to sign the advice of rights card and told Uda that he had "nothing to talk about" and that he knew nothing about the robberies. Special Agent Uda did not stop the interview, however. He showed Poole surveillance photographs of the robberies. Poole responded "[t]hat's not me in the surveillance photos." At some point, Special Agent Uda told Poole that he was suspected of committing bank robberies with Henry Minnix and that the FBI had a warrant for Minnix's arrest on an unrelated bank robbery charge. Poole admitted that he had met Minnix a week or two before. This evidence was not admitted at trial. At the close of the interview, Special Agent Uda asked Poole his name, date of birth and place of birth. Poole gave a false name. Special Agent Uda discovered the falsity, prior to Poole's arraignment the next day, when Poole gave his proper name for the federal marshal's form that Special Agent Uda was filling in.

Over Poole's objection, ¹ Special Agent Uda testified at trial that Poole falsely identified himself. The jury was instructed that the giving of a false name might show "consciousness of guilt." The court ruled that Poole asserted his right to remain silent before the falsity was elicited. The court concluded, however, that Special Agent Uda inquired about Poole's name for booking purposes and that booking inquiries were not interrogation. Accordingly, the court denied the motion to strike this evidence.

At trial, the evidence against Poole on the Culver City robbery consisted of eyewitness identifications and Special Agent Uda's testimony that Poole gave a false name. The FBI's forensic photography expert who compared the surveillance photographs to Poole's booking photographs stipulated that he was unable to conclude To discredit the eyewitness identifications, Poole planned to introduce expert testimony regarding possible defects in eyewitness identification. Before trial, the government made a motion in limine to exclude the expert testimony of Dr. Robert Shomer. That motion was granted. Dr. Shomer would have testified that stress, weapon focus, cross-gender identification, the interval between memory and recall, the suggestibility of the photospread, witnesses' tendency to exaggerate the period of observation and witnesses' desire for conformity all could have affected the eyewitness identifications. At trial, the court instructed the jury on factors to consider in evaluating the reliability of identification testimony.

whether Poole was one of the robbers. Wendell Casson testified that Poole robbed him and that he had identified Poole in a photospread. Karen Smith testified that she was robbed by Poole's accomplice and that Poole robbed Casson. She too identified Poole in the photospread.

DISCUSSION

I.

Poole contends that the evidence that he gave a false name was obtained by a custodial interrogation, after he asserted his right to remain silent, in violation of the fifth amendment. The government concedes that Poole was in custody when the incriminating evidence was elicited but contends that the evidence was not elicited by interrogation.

The district court found that Poole invoked his Miranda protections, prior to the booking inquiries, when Poole said that he had "nothing to talk about." The government does not challenge this finding. The district court concluded, however, that the questions about Poole's name, date of birth and place of birth did not constitute interrogation within the meaning of the fifth amendment.

A. Standard of Review

The determination whether a defendant was subjected to custodial interrogation is essentially factual, and is reviewable under the "clearly erroneous" standard. United States v. Wauneka, 770 F.2d 1434, 1438 (9th Cir.1985) (citing United States v. McConney, 728 F.2d 1195 (9th Cir.), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984)); United States v. Combs, 762 F.2d 1343, 1348 (9th Cir.1985).

B. Fa1se Name Evidence

The Miranda rights protect against government overreaching in custodial interrogations. Miranda v. Arizona, 384 U.S. 436, 467, 86 S.Ct. 1602, 1624, 16 L.Ed.2d 694 (1966). Once the suspect invokes his Miranda protections, the government cannot use any evidence obtained through custodial interrogation unless the suspect knowingly waives his rights. See id. at 479, 86 S.Ct. at 1630. ² "[C]ustodial questioning constitutes interrogation whenever, under all circumstances involved in a given case, the questions are 'reasonably likely to The government argues that Special Agent Uda "merely was obtaining background indentifying information," not interrogating Poole, when he elicited the false name. The government analogizes this questioning to the routine booking process. Special Agent Uda discovered the falsity when Poole gave his proper name for a standard form that was being completed for the federal marshals. The incriminating evidence, however, was obtained during an earlier interview, which was conducted for an investigatory purpose and not for the booking process. ³ Consequently, we do not deal with an issue of the proper scope of the booking process for Miranda purposes. See United States v. Prewitt, 553 F.2d 1082, 1085 (9th Cir.), cert. denied, 434 U.S. 840, 98 S.Ct. 135, 54 L.Ed.2d 104 (1977); see also United States v. Perez, 776 F.2d 797, 799 (9th Cir.1986); United States v. Booth, 669 F.2d at 1238; United States v. Kane, 726 F.2d 344, 348-49 (7th Cir.1984); United States v. Avery, 717 F.2d 1020, 1025 (6th Cir.1983), cert. denied, 466 U.S. 905, 104 S.Ct. 1683, 80 L.Ed.2d 157 (1984); United States v. Downing, 665 F.2d 404, 406 (1st Cir.1981); cf. United States v. Hinkley, 672 F.2d 115, 123 (D.C.Cir.1982) (questioning had "clear investigatory purpose"). The issue here is whether, under the circumstances of this case, Special Agent Uda should have known that his questions were reasonably likely to elicit an incriminating response.

                elicit an incriminating response from the suspect.' "   United States v. Booth, 669 F.2d 1231, 1237 (9th Cir.1981) (quoting Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 1689, 64 L.Ed.2d 297 (1980)).  An incriminating statement is "any response--whether inculpatory or exculpatory--that the prosecution may seek to introduce at trial."   Innis, 446 U.S. at 301 n. 5, 100 S.Ct. at 1690 n. 5 (emphasis in original)
                

Special Agent Uda testified that the February 15 interview concerned the bank robberies Poole was suspected of committing. Special Agent Uda was responsible for investigating those robberies and had prepared the photospreads that led to Poole's arrest. At the outset of the interview, Poole received Miranda warnings and asserted his right to remain silent. In the voir dire, Special Agent Uda admitted that usually he would have stopped the interview after a suspect said he had "nothing to talk about." ⁴ Instead, he showed Poole surveillance photographs of the bank robberies and, at some point, mentioned Poole's suspected accomplice by name. Poole responded in his own defense each time. At the close of the interview, Special Agent Uda asked Poole his name, date of birth and place of birth. Poole then gave his incriminating response.

We agree with the district court that Special Agent Uda should have stopped the interview immediately after Poole said he had "nothing to talk about." The district court ruled, and we agree, that any evidence obtained from showing the surveillance photographs would be inadmissible. The district court concluded, however, that the questions about Poole's name, date of birth, and place of birth did not constitute interrogation. We disagree.

In light of the investigatory purpose of Special Agent Uda's interview, we cannot reasonably separate the questions concerning Poole's identity from the improper interrogation that preceded them. See United States v. Hinckley, 672 F.2d at 125-26. The agent's subjective intent in asking the questions...