U.S. v. Sears

• Decision Date: 14 December 1981
• Docket Number: Nos. 80-1341,80-1342 and 80-1397,s. 80-1341
• Citation: 663 F.2d 896
• Parties: 9 Fed. R. Evid. Serv. 988 UNITED STATES of America, Plaintiff-Appellee, v. Ronald Gene SEARS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Chandra WERNER, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Hubert STROZYK, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 896

663 F.2d 896

9 Fed. R. Evid. Serv. 988

UNITED STATES of America, Plaintiff-Appellee, v. Ronald Gene SEARS, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Chandra WERNER, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Hubert STROZYK, Defendant-Appellant.

Nos. 80-1341, 80-1342 and 80-1397.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Aug. 3, 1981.

Decided Dec. 14, 1981.

Howard W. Gillingham, Los Angeles, Cal., for Sears.

Wallace D. Farrell, San Bernardino, Cal., for Strozyk.

Steven Kramer, Asst. U. S. Atty., Los Angeles, Cal., for plaintiff-appellee.

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

Before ANDERSON and POOLE, Circuit Judges, and EAST, ^* District Judge.

EAST, District Judge:

Sears, Werner and Strozyk separately appeal from their respective judgments of conviction and sentence for bank robbery and kidnapping, 18 U.S.C. § 2113(a), (d) and (e), entered by the District Court on May 28, 1980. Count I charged all three defendants with the robbery of the Orangebelt Federal Savings and Loan Association in San Bernardino, California, and with a kidnapping arising out of the same incident. Count II contained similar charges against Sears and Werner arising out of the robbery of the Bank of America in Victorville, California. The separate appeals were consolidated for hearing.

Before trial, Strozyk moved for severance of offenses and defendants. The court severed Counts I and II, but ordered that Strozyk, Sears and Werner be tried together on Count I. The court denied Werner's motion to suppress evidence seized at the time of her arrest, but ordered suppression of all statements made by her after her arrest.

The jury found each defendant guilty as charged on Count I. We note jurisdiction under 28 U.S.C. § 1291 and affirm.

THE FACTS

In the early morning hours of July 21, 1978, the Assistant Vice President of the Orangebelt Savings and Loan Association, John Savage, and his wife, Louise Savage, were awakened in their home by intruders. Blindfolded, handcuffed and repeatedly threatened, Mrs. Savage was left in the desert with one of the captors while the other two bandits drove with Mr. Savage to Mr. Savage described the robbers as two men in dark suits with long greasy hair, dark mahogany-colored faces, and Iranian or Middle Eastern accents. Mrs. Savage was able to peek out of a corner of her blindfold and see that the captor who remained with her in the desert had small feet and a gun. She described this person's voice as having a funny monotone pitch that sounded "kind of hollow."

the Savings and Loan. There the robbers stole a substantial amount of cash, and also broke into several safety deposit boxes, stealing jewelry and a coin collection. In the process, they displayed two machine guns, handguns and dynamite.

About an hour after the robbery, Sears, Werner and Strozyk appeared at the home of Dolly and Jim Vorisek, who were friends of Sears. Mrs. Vorisek testified that the three took showers and then showed her numerous weapons and a suitcase full of money, jewelry, dynamite, handcuffs and dark-colored makeup. They proceeded to count the money, and Sears recounted the story of the robbery in detail without protest from either Strozyk or Werner. At Mrs. Vorisek's request, Mr. Vorisek returned home early from work, saw the loot and the weapons and heard the story of the robbery from Sears, again in the presence of Strozyk and Werner.

On January 25, 1980, Sears and Werner were arrested for the kidnapping-robbery involving the Bank of America in Victorville, California. At the time of their arrest, Sears and Werner possessed several weapons, some pipe bombs, handcuffs, binoculars, and a walkie-talkie radio. They were later indicted for both the bank robbery and the Savings and Loan robbery.

The Voriseks did not contact the police about what they had observed, but eventually told the FBI what they knew in early 1980, after Sears and Werner were arrested for the Victorville robbery. The appellants make several claims of error, both jointly and individually.

ISSUES

1. Did the District Court abuse its discretion by failing to dismiss a juror for bias and for incompetency due to a hearing problem?

2. Did the District Court abuse its discretion by denying Strozyk's motion for a separate trial on Count I?

3. Did the District Court erroneously deny Werner's motions to suppress evidence found on her person at the time of her arrest?

4. Was the evidence presented against Werner insufficient to support her conviction?

DISTRICT COURT'S REFUSAL TO REMOVE A JUROR

Sears, Werner and Strozyk contend that the District Court abused its discretion by not dismissing a juror who had a possible hearing problem during the trial and who made an unauthorized statement to a Government witness after his testimony.

As the jurors were filing out of the courtroom after the fourth day of trial, one of the jurors remarked "nice job" or "good job" to an FBI agent who had just testified. Counsel for the Government overheard the remark and immediately reported it to the court. The juror was questioned by the court about the remark during a recess on the next day. He admitted making the statement, and said that he meant to indicate that the agent had spoken clearly and in a loud voice, so that the juror could hear him. The juror also said, "He was the only witness I could hear clearly." Upon further questioning, the juror said that the reason he made the statement was that he "could hear him clear and concise. The other people I could hear. There were undertones I couldn't quite understand." After a sidebar conference at which the court rejected defense motions to disqualify the juror, the juror said: "May I make a comment? I have a hearing impairment and I have had difficulty understanding some of the questions and I have a comment that his voice was concisely clear and loud. I could hear it very clearly."

Sears contends that once the preliminary showing of juror misconduct had been Each of the defendants contends that the District Court erred in refusing to remove the juror, claiming that the juror's communication to the FBI agent indicated his bias in favor of the Government, and that the juror had not heard all of the testimony due to a hearing impairment.

made, he had a corresponding right to an inquiry into relevant surrounding circumstances. The District Court has broad discretion to decide whether to conduct an evidentiary hearing into alleged juror misconduct, and to determine its extent and nature. United States v. Berry, 627 F.2d 193, 197 (9th Cir. 1980), cert. denied, 449 U.S. 1113, 101 S.Ct. 925, 66 L.Ed.2d 843 (1981); United States v. Hendrix, 549 F.2d 1225, 1227-28 (9th Cir.), cert. denied, 434 U.S. 818, 98 S.Ct. 58, 54 L.Ed.2d 74 (1977). In the present case, the District Court extended defense counsel an opportunity to question the juror, which defense counsel declined. Thus, no right of further inquiry was denied.

Again, the trial court is invested with a wide discretion in determining the competency of jurors. That judgment will not be disturbed absent a showing of an abuse of that discretion. United States v. Hendrix, 549 F.2d at 1229. "The (trial) court must determine if the bias or prejudice amounted to a deprivation of Fifth Amendment (due process) or Sixth Amendment (impartial jury) guarantees. 'The test is whether or not the misconduct has prejudiced the defendant to the extent that he has not received a fair trial.' (citations)." Id. Here, the juror explained that his commendation to the agent on his performance on the stand was meant only to indicate that he appreciated the witness's speaking clearly and in a loud voice. The District Court questioned the juror extensively enough to satisfy itself that the juror was not biased. Thus, we find no abuse of discretion by the District Court in refusing to replace the juror for bias.

We further hold that the District Court did not err in refusing to dismiss the juror due to a hearing problem. On the day that the juror's comment was made, only one other witness testified. That witness was apparently soft-spoken, and was asked at various times to speak up by both the Assistant United States Attorney and Sears' attorney, as well as by another juror. While a hearing problem may have exacerbated the situation, the juror in question indicated to the trial judge that he was able to hear the witnesses, although he could not quite understand some of the "undertones" and had "difficulty" understanding some of the questions. Furthermore, the court had the opportunity to observe the juror closely before deciding that his hearing difficulty would not deny defendants' rights to due process or a fair trial. See Lyda v. United States, 321 F.2d 788, 790-91 (9th Cir. 1963).

We hold that the District Court acted well within its discretion in determining that the defendants received a fair trial by an impartial and competent jury, and thus did not err in its decision not to remove the juror in question for bias or for incompetency due to a hearing impairment.

DISTRICT COURT'S REFUSAL TO SEVER THE TRIAL OF APPELLANT STROZYK

Strozyk moved both before and during trial for severance from the other defendants. He claims on appeal that the District Court's refusal to grant the severance prevented him from fully presenting his individual defense, limited his ability to cross-examine the witnesses properly, and prejudiced him by causing him to appear guilty by association with the other defendants.

The often-articulated rule in this Circuit for evaluating severance claims is that, generally speaking, defendants jointly indicted should be jointly tried. Fed.R.Crim.P. 14 provides, however, that the trial judge may grant a severance when it appears that a defendant would suffer significant prejudice from a joint trial. The decision whether the prejudice...