U.S. v. Satterfield

• Decision Date: 22 March 1978
• Docket Number: No. 77-2354,77-2354
• Citation: 572 F.2d 687
• Parties: 3 Fed. R. Evid. Serv. 358 UNITED STATES of America, Plaintiff-Appellee, v. Robert Joseph SATTERFIELD, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 687

572 F.2d 687

3 Fed. R. Evid. Serv. 358

UNITED STATES of America, Plaintiff-Appellee, v. Robert Joseph SATTERFIELD, Defendant-Appellant.

No. 77-2354.

United States Court of Appeals Ninth Circuit.

March 22, 1978.

Stephen A. Houze (argued), of Portland, Or., for defendant-appellant.

Jack C. Wong, Asst. U. S. Atty., Portland, Or., for plaintiff-appellee.

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

Before WRIGHT and SNEED, Circuit Judges, and RENFREW, ^* District Judge.

RENFREW, District Judge:

Satterfield appeals from his convictions for bank robbery and associated firearms violations.

On October 9, 1974, a grand jury returned a ten-count indictment charging Satterfield and Merriweather with several bank robberies and firearms violations. Counts V and VII (the bank robbery counts) charged Satterfield with robbing two Oregon banks with Merriweather in violation of 18 U.S.C. § 2113(a), and Counts VI and VIII (the firearms counts) charged him with aiding and abetting Merriweather in violations of 18 U.S.C. § 924(c), which makes it unlawful to "carr(y) a firearm unlawfully during the commission of any felony for which (the defendant) may be prosecuted in a court of the United States." The other counts involved bank robberies and firearms violations which Merriweather committed by himself.

Merriweather and Satterfield were tried together and convicted on all counts, and both appealed. The Court of Appeals for the Ninth Circuit affirmed Merriweather's convictions, United States v. Merriweather, 551 F.2d 314 (9 Cir. 1977), rejecting, inter alia, Merriweather's challenge to the requirement that he wear disguises before the jury. Satterfield's convictions were reversed because of improper joinder. United States v. Satterfield, 548 F.2d 1341 (9 Cir. 1977).

Satterfield was again prosecuted and convicted on all four counts. Two eyewitnesses to each of the two bank robberies identified Satterfield with a stocking mask on as one of the robbers. Two eyewitnesses identified Satterfield as one of the unmasked men leaving the scene of the bank robberies. Three of Satterfield's co-workers also identified him as one of the robbers in the bank surveillance photographs.

On June 10, 1977, the trial court sentenced Satterfield to twenty years' imprisonment on each bank robbery count and ten years on each firearms count with all sentences to run concurrently but consecutive to a sentence in an unrelated 1966 Indiana bank robbery conviction.

I. The Wearing of the Disguises

Appellant made timely motions that he should not be required to wear stocking masks before the jury. He contends that the denial of these motions was error, although he does not articulate specific reasons why the prejudicial effect of wearing the disguises outweighed the probative value in the circumstances of this case.

The trial court required Satterfield to put on the masks on three occasions during the trial. On each of the first two occasions, two eyewitnesses to the robberies were in the courtroom, which reduced the number of maskings from four to two. The purpose of the third showing was to permit the jury to compare Satterfield's masked appearance with the appearance of the robbers in bank surveillance photographs introduced into evidence. On each of those three occasions, Satterfield put on and took off the mask outside the presence of the jury, so the jury saw Satterfield masked for the shortest possible time that permitted the eyewitnesses and jury to view him fairly. In addition, some witnesses identified Satterfield in a line-up where all the participants were masked, and photographs of those line-ups were introduced in evidence.

The manner in which in-court identifications are conducted rests within the sound discretion of the trial court. United States v. Williams, 436 F.2d 1166, 1168 (9 Cir. 1970); United States v. King, 433 F.2d 937, 938 (9 Cir.), cert. denied, 402 U.S. 976, 91 S.Ct. 1681, 29 L.Ed.2d 142 (1970). The trial court did not abuse its discretion here. The ability of the eyewitnesses to identify Satterfield as the masked robber is certainly probative, and the fact that they had made similar identifications in Satterfield's first trial and at some line-ups does not destroy the probative value of the last in-court identification. The wearing of the disguises aided the jury in its fact-finding function. By seeing for itself Satterfield in disguises, it could better evaluate the ability of the eyewitnesses to recognize a masked person on different occasions. The third wearing of the disguises also helped the jury to judge for itself whether the individual in the bank surveillance photographs was Satterfield.

The probative value outweighed the prejudicial effect, which was minimized by limiting both the time during which the jury saw appellant in disguise and the number of times on which he had to put on the mask.

II. The Exclusion of the Statement Against Interest

Before trial, Satterfield moved for a ruling on the admissibility of certain statements by his codefendant, Merriweather, which tended to exculpate Satterfield. The trial court held a hearing on that motion. See Fed.R.Crim.P. 17.1.

Despite an offer of immunity, Merriweather testified that he would not under any circumstances testify about those statements exculpatory of Satterfield. Satterfield testified that he and Merriweather had an argument at Leavenworth Penitentiary in the fall of 1976 along the following lines. Satterfield asked Merriweather why he would not admit that Satterfield was not involved in either robbery; Merriweather responded that he did not want to jeopardize his own appeal or send his "crime partner" to jail, and that he thought that both his and Satterfield's convictions would be reversed on appeal anyway. Two other inmates, Rosales and Barron, who were friends of Satterfield, testified that they overheard the same argument, and Satterfield offered to prove that another two inmates, Morgan and Rux, overheard it as well. According to Barron and Rosales, Merriweather also accused Satterfield of causing the break-up of his marriage. Rosales and Barron also testified about separate subsequent conversations with Merriweather in which he told them, in effect, that Satterfield was not his accomplice. The Government introduced evidence that none of the prison staff reported any argument between Merriweather and Satterfield on the day it allegedly occurred although disputes of its alleged intensity were generally broken up and reported, and that Rux and Morgan were not in the cellblock where the argument occurred when it occurred. Based on this hearing, the trial court denied the motion.

Rule 804(b)(3) of the Federal Rules of Evidence provides:

"A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject him to civil or criminal liability, or to render invalid a claim by him against another, that a reasonable man in his position would not have made the statement unless he believed it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement." (Footnote omitted.)

"Determination of admissibility under Rule 804(b)(3) is left to trial court discretion. United States v. Guillette, 547 F.2d 743 (2d Cir. 1976)." United States v. Oropeza, 564 F.2d 316, 325 (9 Cir. 1977). The standard for appellate review of a decision to exclude a hearsay statement under Rule 804(b)(3) is whether the trial court abused its discretion. Cf. United States v. Bagley, 537 F.2d 162, 166-167 (5 Cir. 1976).

Under Rule 804(b)(3), the proponent of evidence offered to exculpate the accused here had to establish three elements: (1) that the declarant was unavailable; (2) that the statement "at the time of its making * * * so far tended to subject (the declarant) to * * * criminal liability * * * that a reasonable man in his position would not have made the statement unless he believed it to be true"; and (3) that "corroborating circumstances clearly indicate the trustworthiness of the statement." See United States v. Oropeza, supra, 564 F.2d at 325 & n.8.

1. Unavailability

The trial court ruled, and the parties agree, that Merriweather was unavailable within the meaning of Rule 804(a)(2).

2. Statement Against Interest

The statement could have been used against Merriweather at a retrial if his conviction had been reversed. The inevitable uncertainty about the outcome of criminal appeals makes it difficult to know whether a reasonable person ¹ would have considered the likelihood of success of the appeal great enough to deter him from making the statement unless he believed it to be true. None of the errors alleged by Merriweather was so blatant that a reasonable layperson would have been confident of the success of the appeal.

If Congress had wanted courts to take a restrictive approach to whether a statement is against penal interest, it would not have chosen "the broadly worded phrase 'tended to subject' " in Rule 804(b)(3). United States v. Benveniste, 564 F.2d 335, 341 (9 Cir. 1977). Accordingly, Merriweather's statement was against his penal interest within the meaning of the Rule, but the low objective likelihood of reversal of his convictions reduces "the extent to which the declaration is really against the declarant's penal interest," United States v. Oropeza, supra, 564 F.2d at 325, and therefore reduces its trustworthiness.

3. Corroborating Circumstances

Corroborating circumstances do not clearly indicate the trustworthiness of Merriweather's alleged statement.

A threshold question is whether Rule 804(b)(3) authorizes an inquiry into the trustworthiness of the declarant only or of the witness as well. The Courts of Appeal are split. Compare United States v. Bagley, supra, 537 F.2d at...