U.S. v. Triplett

• Decision Date: 07 February 1997
• Docket Number: Nos. 96-1370EMS,96-1371EMSL and 96-1621EMSL,s. 96-1370EMS
• Parties: 46 Fed. R. Evid. Serv. 289 UNITED STATES of America, Appellee, v. Steven TRIPLETT, Appellant. UNITED STATES of America, Appellee, v. Joseph Lee TRIPLETT, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1074

104 F.3d 1074

46 Fed. R. Evid. Serv. 289

UNITED STATES of America, Appellee, v. Steven TRIPLETT, Appellant.

UNITED STATES of America, Appellee, v. Joseph Lee TRIPLETT, Appellant.

Nos. 96-1370EMSL, 96-1371EMSL and 96-1621EMSL.

United States Court of Appeals,

Eighth Circuit.

Submitted Sept. 11, 1996.

Decided Jan. 17, 1997.

Rehearing and Suggestion for Rehearing

En Banc Denied Feb. 7, 1997.

Jerilyn E. Lipe, argued, Clayton, MO, for Steven Triplett.

Eric Butts, argued, St. Louis, MO, for Joseph Triplett.

Thomas Joseph Mehan, Assistant U.S. Attorney, argued, St. Louis, MO, for appellee.

Before BOWMAN, BRIGHT, and JOHN R. GIBSON, Circuit Judges.

BOWMAN, Circuit Judge.

On May 18, 1995, two armed, masked men robbed a United States Post Office in St. Louis. At approximately 4:00 p.m., the men, brandishing weapons, accosted a postal employee on a loading dock and forced their way into the back room of the postal facility. Once inside, the gunmen threatened two other postal employees and compelled them to turn over a large amount of currency, checks, and postal money orders. These money orders were imprinted with serial numbers that were recorded by postal officials and could be traced in the event of a theft. During the course of the robbery, a shot was fired by one of the gunmen. The bullet lodged in the wall and later was recovered by police. Once the gunmen were satisfied that there was no additional money on the premises, they forced all three postal employees into an adjoining bathroom, bound two in duct tape, and buried all three under a pile of mail bags, boxes, and transportation carts. The gunmen then secured the bathroom door with another pile of boxes and carts, removed the videotape from the surveillance camera, and fled the post office.

Investigation of the robbery led to the arrest and indictment of Steven Triplett and Joseph L. Triplett. Both were charged with armed robbery of a United States Post Office in violation of 18 U.S.C. § 2114(a) (1994) and use of a firearm during the robbery in violation of 18 U.S.C. § 924(c)(1) (1994). In addition, Steven Triplett was charged as a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) (1994).

A jury found both Steven and Joseph Triplett guilty on the armed robbery and § 924(c) charges. Steven waived trial by jury on the § 922(g) charge and that part of the case was submitted to the District Court based on the testimony elicited during his trial on the other charges. The District Court found Steven guilty on the § 922(g) charge, and the court entered judgment against both men in accordance with the jury's and the court's findings on the various charges. The court sentenced Steven Triplett to 180 months of imprisonment and Joseph Triplett to 360 months of imprisonment. Both men appeal their armed robbery and § 924(c) convictions. Steven does not appeal the § 922(g) conviction, but challenges the District Court's sentence, the computation of which took this conviction into account. Joseph does not appeal his sentence.

Steven Triplett first challenges the District Court's admission into evidence testimony by Walter Ivery regarding Ivery's attempt to cash a number of the stolen postal money orders four days after the post-office robbery. Steven contends that this testimony was improperly admitted evidence of "other crimes" under Federal Rule of Evidence 404(b) ¹ meant only to sully his character or prove his propensity to commit the charged crimes.

Our review of the evidentiary rulings of a district court is for abuse of discretion, see United States v. Ballew, 40 F.3d 936, 941 (8th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1813, 131 L.Ed.2d 737 (1995); United States v. Whitfield, 31 F.3d 747, 749 (8th Cir.1994), and we "will reverse only when an improper evidentiary ruling affects the substantial rights of the defendant or when we believe that the error has had more than a slight influence on the verdict." Ballew, 40 F.3d at 941.

Walter Ivery testified that Steven Triplett telephoned him on May 22, 1995, four days after the robbery, and requested his assistance in "moving" some money orders that Steven purportedly acquired from a man who took them from a woman's purse. Ivery further testified that he met with Steven on May 22, 1995, that Steven handed him an envelope containing the stolen money orders, and that Steven was present when Ivery eventually attempted to cash the stolen money orders at another post office.

Underlying Steven Triplett's objection to the admission of Ivery's testimony is his mischaracterization of these statements as evidence of "other crimes, wrongs, or acts" under Rule 404(b). This evidence is more accurately characterized as direct evidence of the crime charged. See Ballew, 40 F.3d at 941; United States v. Jones, 880 F.2d 55, 59 (8th Cir.1989). Contrary to Steven's assertions, this evidence was not admitted merely to tarnish his reputation or to demonstrate his propensity to commit the charged crimes; it was admitted as direct evidence that he was in possession of the postal money orders that were stolen from the post office only days before. A reasonable inference from such possession was that Steven participated in the robbery of the post office.

The possession of property recently stolen "is ordinarily a circumstance from which a jury may reasonably draw the inference and find, in the light of surrounding circumstances shown by the evidence in the case, that the person in possession not only knew it was stolen property, but also participated in some way in the theft of the property." United States v. Nabors, 762 F.2d 642, 653 (8th Cir.1985) (citation to quoted case omitted); cf. United States v. Clark, 45 F.3d 1247, 1250 (8th Cir.1995) ("possession of recently stolen property is evidence of participation in a theft"). We find no abuse of discretion by the District Court in overruling Steven's objections to the admission of this evidence.

Steven Triplett advances similar arguments to demonstrate the impropriety of admitting into evidence still photographs prepared of him from a post-office surveillance videotape that was made during Walter Ivery's failed attempt to cash the stolen money orders. Like Ivery's testimony, these photographs were admitted as relevant evidence of the crimes charged and not as evidence of uncharged crimes nor as evidence intended to disparage Steven's reputation or merely to illustrate his propensity to commit the charged crimes. Steven's involvement in the scheme to cash the stolen money orders is relevant and admissible evidence concerning his involvement in the robbery that was executed to procure those money orders. See Clark, 45 F.3d at 1250 (upholding jury instruction that permitted an inference of involvement in robbery from possession of recently stolen property).

In the alternative, Steven Triplett argues that these photographs are cumulative since defense counsel stipulated at trial to Steven's presence in the post office during Ivery's attempt to cash the stolen money orders. Even if, as Steven argues, this evidence was cumulative given Walter Ivery's in-court testimony and defense counsel's stipulation regarding the events of May 22, 1995, the prejudicial effect of its admission is negligible. "Improper admission of evidence which is cumulative of matters shown by admissible evidence is harmless error." Smith v. Firestone Tire & Rubber Co., 755 F.2d 129, 132 (8th Cir.1985). Because Ivery's testimony regarding Steven's presence at the post office was admissible, the still photographs confirming Steven's presence, even if cumulative, are likewise admissible. The District Court did not abuse its discretion in admitting this evidence.

Steven Triplett next asserts that the District Court erred in refusing to allow cross-examination of Walter Ivery concerning the discovery by police of an alleged controlled substance during a search of Ivery's home after his arrest for attempting to cash the stolen money orders. This refusal, according to Steven, denied him the opportunity to demonstrate Ivery's motive for testifying falsely, namely, Steven's theory that prosecutors promised Ivery clemency on future drug possession charges in exchange for his testimony against Steven.

"The Confrontation Clause of the Sixth Amendment guarantees to a defendant the opportunity for effective cross-examination of witnesses against him, including inquiry into the witnesses' motivation and bias." United States v. Willis, 997 F.2d 407, 415 (8th Cir.1993), cert. denied, 510 U.S. 1050, 114 S.Ct. 704, 126 L.Ed.2d 670 (1994). This guarantee, however, is not without limitation. "[We] have long recognized that the trial judge must retain discretion to limit the scope of cross-examination." United States v. Wood, 834 F.2d 1382, 1384 (8th Cir.1987) (citations omitted); accord United States v. Juvenile NB, 59 F.3d 771, 778 (8th Cir.1995). Reversal of a district court's decision to limit cross-examination is warranted, therefore, "only where there has been clear abuse of discretion, and a showing of prejudice to the defendant." Wood, 834 F.2d at 1384.

The District Court allowed defense counsel to question Ivery about the results of this search outside the presence of the jury, and concluded that the inquiry was an improper attempt to impeach Ivery for bias. The confiscated material was never tested or positively identified as a controlled substance and Ivery was never charged with possession of a controlled substance. Ivery testified that he entered into no agreement with the government conditioning his testimony in this trial on favorable treatment on any future charges made in connection with the alleged drug possession. The officers who came in contact with Ivery likewise testified that they made no promises of leniency in return for Ivery's cooperation with their investigation of the post-office robbery. Defense counsel was provided ample opportunity to cross-examine Ivery...