U.S. v. Sturgis
| Decision Date | 26 July 1978 |
| Docket Number | No. 77-3995,77-3995 |
| Citation | 578 F.2d 1296 |
| Parties | 3 Fed. R. Evid. Serv. 614 UNITED STATES of America, Appellee, v. John Miles STURGIS, Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Phillip M. Margolin (argued), Portland, Or., for appellant.
Kenneth A. Bauman, Asst. U. S. Atty. (argued), Portland, Or., for appellee.
Appeal from the United States District Court, District of Oregon.
Before KILKENNY, TRASK and SNEED, Circuit Judges.
Appellant, with two others, was indicted, tried by a jury and convicted of bank robbery by force, violence, and intimidation in violation of the provisions of 18 U.S.C. § 2113(a) and (d). WE AFFIRM.
On August 22, 1977, the Moreland-Sellwood Branch of The First National Bank of Oregon, Portland, Oregon, was robbed of approximately $16,500.00 by four men. Pruett, one of the four, turned state's evidence. He testified that he, the appellant, Charlesworth and Culwell, 1 met at appellant's apartment on August 21, 1977, and there decided to rob a bank. The witness testified that Culwell ordered him, Charlesworth, and appellant to steal a get-away car.
At about 4:00 A. M. on the 22nd, they stole a light green Volkswagen with Washington license plates. The Volkswagen was driven to a parking lot near appellant's apartment where it remained overnight. Shortly afterwards, Pruett and Charlesworth returned to their apartment. At about nine that morning, Culwell phoned Pruett and Charlesworth and advised them that they should meet him and appellant at the appellant's apartment.
At appellant's apartment the men removed certain disguises, clothing and a shotgun from a white suitcase. Culwell and Charlesworth dressed up in wigs and other disguise clothing. Culwell put the sawed-off shotgun under his arm, while Charlesworth armed himself with a .38 caliber automatic revolver. Appellant put on a pair of blue and white striped bib overalls, a blue and yellow striped Pendleton shirt, and a brown short haired wig, together with a nylon stocking which he placed over his hair before attaching the wig. The appellant then picked up a Walther 2 PPK 9 MM gun and put it in his waist pocket. When everyone was disguised, Charlesworth drove them in his Cadillac to where the stolen Volkswagen was parked and then left his car to drive the Volkswagen. Pruett took over driving the Cadillac with appellant and Culwell remaining as passengers. Pruett and Charlesworth had walkie-talkies so that they could communicate back and forth between the two cars. The men drove to the area of the bank and parked the cars, but decided that because of the large number of police in the area a fake phone call should be made to occupy them. Pruett made the call regarding a bomb threat at a nursing home on a street some distance away. After completing the phone call, he returned to the Cadillac where Culwell and appellant were waiting. Charlesworth was still in the Volkswagen. They decided to place another phony telephone call which Pruett also made. About this time appellant and Culwell left for the Volkswagen after instructing Pruett on how to respond to police activity during the actual holdup. When they left to rob the bank, Charlesworth was driving the Volkswagen with appellant in the back seat and Culwell in the front seat.
After robbing the bank the men drove the Volkswagen behind a neighborhood home. Appellant took off his disguise clothing and put it in a brown paper bag. Shortly thereafter, appellant left Culwell and Charlesworth and ran toward his mother's home. Pruett panicked and shunned his role as get-away driver by leaving Charlesworth and Culwell. After driving only a few blocks he changed his mind and returned to pick them up. The three then drove to appellant's apartment. A few minutes later appellant arrived for the rendezvous at his apartment. Culwell and Charlesworth discarded their disguises, and the men began to split up the money. This was the first time that Pruett had seen any of the holdup money. He testified that he A short time later Pruett admitted several FBI agents to his and Charlesworth's apartment. Suspecting that Culwell was in the apartment, the agents searched for him but found Charlesworth instead. Additionally, they discovered a number of marihuana plants. The Portland police were informed of the drugs and Pruett and Charlesworth were arrested. The FBI suggested that the Portland police secure a search warrant before conducting a full search of the entire apartment, but the officers felt that this was unnecessary under Oregon law. The apartment search uncovered $5,195.00, a .38 caliber weapon, and a white suitcase containing clothing, disguises, a sawed-off shotgun, pry-bars, and a bag containing appellant's fingerprints.
observed the division of stacks of money in various denominations. He received $200.00 for serving as the driver, and Culwell later gave him an additional $500.00. Culwell, Charlesworth and appellant divided the remaining money. The shotgun and disguises used in the holdup were placed in a white suitcase which Pruett and Charlesworth took to their apartment.
At trial, appellant's principal defense was an alibi, claiming that he was at his mother's home during the robbery.
Appellant argues that Pruett was permitted to bolster his own testimony while attacking appellant's credibility in violation of FRE 404.
While Pruett was on the witness stand, he was asked why he decided to testify as a government witness. He responded by saying that he had a child and didn't want to be involved in this type of behavior the rest of his life. He concluded by saying that, "I feel that I don't want to be involved in this, and I feel that these people are very dangerous." Appellant's only objection to the forepart of the answer was that it was "self-serving." There was no objection to, nor motion to strike, the portion of his answer which indicated that his fellow conspirators were "very dangerous." Not only did the appellant's attorney fail to object or move to strike the answer with reference to "dangerous" people, he cross-examined the witness in detail on this testimony. Counsel repeatedly tried to develop that the witness was, in fact, seeking leniency from the court and prosecution, rather than fearing association with "dangerous" people. Manifestly, any possible error in this statement was minimized, if not completely erased, by counsel's own development of the subject during cross-examination. Beyond that appellant's counsel reemphasized the statement in his closing argument to the jury. Consequently, appellant is in no position to claim error. United States v. Pavon, 561 F.2d 799, 802 (CA9 1977); United States v. Jamerson, 549 F.2d 1263, 1266-67 (CA9 1977).
There was nothing wrong with Pruett testifying on his motive for turning state's evidence. He conceded that he was a participant in the group that robbed the bank and admitted to two prior burglaries. This testimony was developed by the government. Manifestly, the government was not trying to portray the witness as one of unsullied reputation. This contention is meritless.
Next, appellant contends that the prosecutor, on closing argument, suggested that appellant was guilty by reason of his association with his fellow bank robbers. Although we strongly condemn the prosecutor's argument that ". . . birds of a feather flock together," the record is replete with evidence that appellant was an active participant in the conspiracy to rob the bank, that he took part in the robbery and that he was present during the division of the stolen funds. Appellant's case People v. Mordino, 58 A.D.2d 197, 396 N.Y.S.2d 737 (1977), while superficially supporting appellant's contention, is wide of the mark when read in the light of the record before us. There, the court concluded that the prosecutor's comments did not constitute
reversible error. No doubt, the district judge misspoke himself when he said he only interfered with closing arguments of the attorneys when the remarks were "legally wrong." Not only should a judge interfere with an attorney's closing argument when it is "legally wrong," but he should also limit, for example, attorneys' remarks outside the record or unduly inflammatory. Our examination of the judge's instructions convinces us that the jurors were fully informed as to the limitations they should place on the attorneys' arguments and that the judge's statement, when taken in context, was harmless.
Appellant's next contention turns on his attempted impeachment of Pruett's credibility. Pruett testified on cross-examination that he had been arrested on the day of the bank robbery by local authorities and charged with, but never prosecuted, for possessing the five ounces of marihuana. This, the appellant argues, demonstrates that a deal must have been made between the government and Pruett.
To accentuate this argument, the appellant called as a witness a Multnomah County Deputy District Attorney. He testified that the maximum penalty under Oregon law for conviction on such a marihuana charge was ten years. Over appellant's objection, the witness testified on cross-examination that in his experience in cases involving five ounces of marihuana, guilty defendants were not incarcerated. Appellant having called the witness and qualified him as a deputy district attorney with two years experience is not now in a position to challenge the qualifications of his own witness to testify to the customary sentence that might be imposed in a case such as this.
We hold that the trial judge did not abuse his discretion in allowing the government to conduct this type of cross-examination. It was well within the scope of the direct. Quiles v. United States, 344 F.2d 490, 494 (CA9 1965). Moreover, on the record in this case, the error, if any, was harmless, under the provisions of FRCrimP, 52(a).
Next, appellant contends that the court erred in...
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