U.S. v. Ragghianti

• Decision Date: 16 September 1977
• Docket Number: No. 76-3013,76-3013
• Citation: 560 F.2d 1376
• Parties: 2 Fed. R. Evid. Serv. 725 UNITED STATES of America, Plaintiff-Appellee, v. Donald Antonio RAGGHIANTI, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1376

560 F.2d 1376

2 Fed. R. Evid. Serv. 725

UNITED STATES of America, Plaintiff-Appellee, v. Donald Antonio RAGGHIANTI, Defendant-Appellant.

No. 76-3013.

United States Court of Appeals Ninth Circuit.

Sept. 16, 1977.

On Appeal from the United States District Court for the District of oregon.

Norman Sepenuk, Portland, Or., argued, for defendant-appellant.

Frank Noonan, Asst. U. S. Atty., Portland, Or., argued, for plaintiff-appellee.

Before MERRILL and SNEED, Circuit Judges, and BLUMENFELD, ^* District Judge.

BLUMENFELD, District Judge:

Under an indictment charging him with aiding and abetting in the commission of a bank robbery, 18 U.S.C. § 2113(a), appellant was convicted by a jury and received a sentence of 20 years' imprisonment. At the trial, he sought to establish an alibi defense. On appeal, the defendant contends that the court erred (a) in refusing to give a requested "alibi" instruction, and (b) in neglecting to limit certain testimony for impeachment purposes only. Although we reverse and remand because of error in the charge, in the interest of an error-free retrial we discuss the second alleged error as well.

Facts

At approximately 3:00 p. m. on October 22, 1974, the Macadam Ave. Branch of the First National Bank of Oregon, Portland, Oregon, was entered and robbed by Richard Paul Repp.

Some 15 or 20 minutes later Repp and the defendant arrived at the Westover Towers Apartments in an auto driven by the defendant with Repp in the back seat. Repp got out of the car and then took something from the back seat. Both men entered the apartment. About 20 minutes later, the defendant came out of the apartment and began to drive away, but was shortly thereafter arrested. He had $1,280 on his person. In one pocket was a wad of $970, containing $80 of bait money. ¹

The Alibi Evidence and Charge

The government's sole theory of aiding and abetting was that the defendant was waiting in a car in a parking lot not far from the bank and that he drove the getaway car. All of the evidence introduced at trial showed that the actual robbery of the bank was committed by Repp, acting alone. The bank manager followed Repp out of the bank and around a corner, saw him go up Macadam Avenue and turn into the John's Landing shopping complex before losing sight of him. A second witness observed Repp proceed alone at a fast walk near the bank to the north side of John's Landing. ² Neither one of these witnesses saw any automobile associated with Repp. The defendant was not observed until approximately a quarter of an hour later when he was seen driving up to his apartment near the intersection of N.W. 25th Place and Lovejoy in a red, two-door sport model Fiat. At that time Repp was in the back seat.

There was testimony that Repp had arrived from Chicago that day at about noon. He was met at the airport by the defendant and a Miss Deborah Tillson. After lunch at an airport restaurant, Repp asked the defendant if he could have the use of the car for about an hour. The defendant told Repp that he could while the defendant and Miss Tillson were doing some shopping downtown. They did some errands and then went downtown. At about 2 o'clock, Ragghianti and Miss Tillson stopped at Meier and Frank, a downtown department store, and turned the car over to Repp. They told Repp to be back in an hour. After robbing the bank, Repp did return to pick up Ragghianti and Tillson who were waiting on a street corner. Repp then feigned illness so as to persuade the defendant to drive him to the defendant's apartment and so that he could lie down in the back seat. According to their testimony, Repp at no time told the defendant that he intended to rob a bank, and the defendant claimed to know nothing about it.

The government contended that the defendant aided and abetted the robbery by driving Repp away from the vicinity of the crime. The testimony of the three witnesses Ragghianti, Repp, and Tillson clearly supported a classic alibi defense that Ragghianti was somewhere else (shopping with Miss Tillson) when Repp robbed the bank and made his escape.

The defendant filed specific requests to charge the jury on the law relating to the alibi defense. The substance of the requested instruction as an accurate statement of the law was not challenged. The judge refused to give this charge, stating: ". . . well, I'm not sure there is an alibi yet. The defendant said he was somewhere else. It's just a question of credibility." Exception to the failure of the judge to give the requested alibi charge was properly taken.

Since it was readily admitted that Repp had robbed the bank alone, the sole contested issue on the charge of aiding and abetting was the defendant's claim of an alibi that he was elsewhere when Repp made the getaway. In the body of the charge the court did not even mention the defendant's claim of an alibi. All that was said about the main issue was,

"Now the government does not claim that it was the defendant who robbed the bank. Rather the government claims the defendant aided and abetted the bank robber by driving a car away from the bank and sharing in the proceeds from the bank robbery. So this is the only offense with which this defendant is charged here today, aiding and abetting in a bank robbery."

At no time did the court discuss any of the evidence as it related to the issues.

The alibi instruction should have been given. The instruction requested is in haec verba in § 11.31 of Devitt and Blackmar, Federal Jury Practice and Instructions, 2d ed. (1970), and was approved in United States v. DePalma, 414 F.2d 394, 396 (9th Cir. 1969). The general rule as to the need for the alibi instruction as discussed in United States v. Marcus, 166 F.2d 497, 503-04 (3d Cir. 1948), is right on point. There the court stated:

"By the weight of authority it is held that the instructions on the presumption of innocence of the accused, and of the necessity of fastening every necessary element of the crime charged upon the accused beyond a reasonable doubt, are not enough in cases involving the necessary presence of the accused at a particular time and place, when the accused produces testimony that he was elsewhere at the time. If the accused requests an instruction as to the burden of proof on his alibi, an instruction on the subject must be given so as to acquaint the jury with the law that the government's burden of proof covers the defense of alibi, as well as all other phases of the case. Proof beyond a reasonable doubt as to the alibi never shifts to the accused who offers it, and if the jury's consideration of the alibi testimony leaves in the jury's mind a reasonable doubt as to the presence of the accused, then the government has not proved the guilt of the accused beyond a reasonable doubt."

See also United States v. Megna, 450 F.2d 511, 513 (5th Cir. 1971); United States v. Burse, 531 F.2d 1151, 1153 (2d Cir. 1976).

This error in failing to give the requested charge was compounded by the supplemental instruction the court did give. Following an off-the-record discussion with counsel at the side bar which the court invited after he had finished the charge and while the jury was otherwise ready to retire to consider their verdict, he gave these additional instructions to the jury:

"And I think on the record that you've heard this and the evidence that you've heard in this case, it's a question of whether you believe in the government's theory of the case that the defendant did know and participate in what was going on or the defendant's theory that he didn't know, wasn't even in the automobile at the time it went out to the bank. So it's a question of weighing the credibility of the witnesses, and there's no duty on this defendant to investigate or try to find out what was happening. If that were the case, it would be your duty to find him not guilty."

Not only was this instruction confusing, it was inconsistent with what the jury had been told before in general terms about the burden of proof being on the government. To instruct the jury that the case would turn upon whom they believed impermissibly emphasized the risk of juror misapprehension of the burden of persuasion which an alibi charge is designed to eliminate. See United States v. Beedle, 463 F.2d 721 (3d Cir. 1972). When an issue of this kind was elevated to last-minute consciousness it was crucial to instruct the jury on the applicable law. It has long been the rule that the court is required to give the jury a full statement of the law, and that "a neglect to give such full statement, when the jury consequently fall into error, is sufficient reason for reversal." Bird v. United States, 180 U.S. 356, 361, 21 S.Ct. 403, 405, 45 L.Ed. 570 (1901). The defendant's claim of an alibi was his sole defense. Here, the error is magnified since the judge was specifically requested to charge the jury on the law governing the issue.

Impeachment Testimony

In remanding this case for a new trial for failure to give an alibi instruction, we are additionally persuaded by the fact that hearsay evidence of prior inconsistent statements of a witness was admitted without the protection of an admonition or instruction from the court to the effect that the statements could be considered only as bearing on credibility.

The government called Miss Tillson as a rebuttal witness. She testified that she had gone downtown with Repp and the defendant and that Repp drove away after he dropped her and the defendant off to go shopping in the Meier and Frank department store; that Repp alone left; and that the defendant stayed there with her. She later saw Repp again when he came by to pick up the defendant outside the building and they drove off. This testimony was out of joint with the government's theory and confirmed the defendant's alibi.

Whether in order to refresh her memory or to impeach her, the prosecutor was permitted to ask her whether she remembered making several oral...