United States v. Amaral

Decision Date03 December 1973
Docket NumberNo. 73-2129.,73-2129.
Citation488 F.2d 1148
PartiesUNITED STATES of America Plaintiff-Appellee, v. Manuel P. AMARAL, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

Alan Saltzman, of Saltzman & Goldin, Hollywood, Cal., for defendant-appellant.

Paul Sweeney, Asst. U. S. Atty., Los Angeles, Cal., for plaintiff-appellee.

Before DUNIWAY and WRIGHT, Circuit Judges, and TURRENTINE,* District Judge.

OPINION

TURRENTINE, District Judge:

I. BACKGROUND

On March 14, 1973, a two count indictment was filed against appellant Manuel P. Amaral and co-defendant Douglas Nordfelt. Count one charged Nordfelt with the January 23, 1973, robbery of a national bank in violation of 18 U.S.C. § 2113(a). Count two charged appellant Amaral with the February 12, 1973 robbery of a national bank, and Nordfelt with aiding and abetting in violation of 18 U.S.C. § 2. A motion to sever was granted. On April 6, 1973, Nordfelt was tried by a jury and convicted on both counts. Defendant Amaral pleaded not guilty. The case was tried by a jury on April 4-6, 1973 and the defendant was found guilty.

Defendant Amaral appeals his conviction below on five grounds:

First, appellant contends that the trial court improperly limited the voir dire examination, particularly in regards to prejudice against Mexican-Americans and overestimation of the credibility of eye-witness identification, thereby depriving appellant of a fair trial.

Second, appellant argues that it is reversible error for the trial court to have failed to give an instruction, sua sponte, to the effect that eye-witness identification should be viewed with extreme caution.

Third, appellant alleges that the trial court admitted irrelevant and highly prejudicial evidence thereby depriving defendant of due process.

Fourth, Amaral argues that the trial court erroneously denied appellant a pre-trial hearing on the admissibility of testimony based on an out-of-court photographic identification.

Fifth, appellant maintains that the trial court abused its discretion in refusing to allow the defense to present testimony by an alleged expert witness regarding the reliability of eye-witness testimony.

We find that these contentions are without merit, and we accordingly affirm the conviction.

II. THE VOIR DIRE

This court has held that the procedures for selecting a fair and impartial jury are properly within the trial judge's discretion as long as they are not unreasonable or devoid of purpose to obtain an impartial tribunal. Hilliard v. Arizona, 362 F.2d 908 (9th Cir. 1966).

Appellant argues that the trial judge inadequately probed the venire persons with respect to bias and prejudice against persons of Mexican or Latin descent.

Unlike United States v. Carter, 440 F.2d 1132 (6th Cir. 1971), cited to us by appellant, the trial judge here did inquire into the racial and ethnic bias, if any, of the jury panel. His voir dire of the first prospective juror included a question with respect to prejudice regarding "race, creed, or religion." R.T. 73 Thereafter, he reminded the prospective jurors that all questions asked of one juror were asked of all and that the voir dire process was a cumulative one designed to probe into the juror's state of mind to discover whether each could determine guilt or innocence based solely on the evidence presented at trial. R.T. 89 Furthermore, upon concluding his voir dire, the trial judge, in response to a specific request by defense counsel, reiterated his query regarding racial or ethnic prejudice. R.T. 101

We, therefore, find that the voir dire conducted by the trial judge was adequate to secure a fair and impartial jury.

Our discussion below of eye-witness testimony makes clear our holding that the trial court's failure to inquire into juror bias in favor of eye-witness identification was not error.

III. SUA SPONTE INSTRUCTION

Appellant argues that the "plain error" section of F.R.Crim.P. Rule 52 requires reversal in that the trial court failed to sua sponte give a cautionary instruction regarding the credibility of eye-witness testimony. The standard to be applied in Federal cases regarding plain error has been well formulated in Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946). If the alleged error did not influence the jury, or had but a very slight effect, the error was not plain nor was it a defect affecting substantial rights.

The court's omission to instruct on the issue of eye-witness testimony was not plain error. As in United States v. De Sisto, 329 F.2d 929 (2d Cir. 1964), the jury's attention was focused on the issue of identity. At summation, counsel for the Government outlined for the jury what he surmised would be defense counsel's argument, i. e. the untrustworthiness of eye-witness identification. Defense counsel in summation argued to the jury that eye-witness testimony suffers from serious distortions because of surrounding circumstances. And again, Government's counsel in rebuttal returned to the identification issue.

Finally, we note the recent Second Circuit case, United States v. Evans, 484 F.2d 1178 (2d Cir. 1973). In Evans, defense counsel requested the trial judge to give a specific charge to the jury regarding the dangers of eye-witness identification. The trial judge declined to give such an instruction and the Second Circuit panel refused to find error, holding that such a charge is "at most * * *" a matter of discretion. Evans, supra, 484 F.2d at 1188. Defendant's counsel here, as in Evans, had a "full opportunity" to develop all facts relevant to identification. Furthermore, we concur with the Second Circuit's endorsement of United States v. Barber, 442 F.2d 517, 526 (3rd Cir. 1971) cert. denied 404 U.S. 958, 92 S.Ct. 327, 30 L. Ed.2d 275 (1971) that "it is necessary neither to instruct the jury that they should receive certain identification testimony with caution, nor to suggest to them the inherent unreliability of certain eye-witness identification."

IV. IRRELEVANT AND HIGHLY PREJUDICIAL EVIDENCE

Appellant Amaral contends that the court below erred in admitting testimony and exhibits which had "virtually no probative value, were grossly prejudicial and should have been excluded from evidence." Appellant's Opening Brief, p. 37

The testimony objected to served as one link connecting appellant Amaral to the truck seen in the vicinity of the bank the morning of the robbery. We, therefore, reject appellant's contention that the testimony "added nothing" to the Government's case Appellant's Opening Brief, p. 38. The situation before us is far different from that in Diaz-Rosendo v. United States, 364 F.2d 941, 944 (9th Cir. 1966) where this Court could "not see how, or in what manner, it could be said that the evidence admitted in any way relates to or tends to prove the commission of the . . . crimes set forth in the indictment."

V. PHOTOGRAPHIC IDENTIFICATION

As a further assignment of error, appellant Amaral contends that the trial court erroneously denied appellant's motion for a pre-trial hearing, made the day of trial, regarding proposed in-court testimony allegedly fatally tainted by an impermissibly suggestive photo spread. Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). Prior to Rule 41's amendment, the law in this Circuit was clear that motions to suppress must be made before trial or hearing unless defendant lacked opportunity to move or if the court in its discretion, for some other good cause, entertained the motion during trial. United States v. Dykes, 460 F.2d 324 (9th Cir. 1972); United States v. Hamilton, 469 F.2d 880 (9th Cir. 1972).

Since the amendment to Rule 41, however, the language construed in those cases has been eliminated and the procedure governing motions to suppress is presently found in F.R.Crim.P. Rule 12. The Notes of the Advisory Committee on Rules indicate that the amendment was intended to require that the motion to suppress be made in the trial court rather than in the district in which the evidence was seized. Its purpose was to avoid duplication of effort and piecemeal adjudication. In view of these comments and in the absence of contrary indication in Rule 12, we find that the above cited cases are still the law in this Circuit. Furthermore, we have no reason to believe that discovery was inadequate to notify defense counsel of the intent by the Government to introduce evidence of an out-of-court photographic identification. Consequently, defendant's objection to the court's action must be rejected.

Finally, appellant's allegations regarding an improper "show-up"1 resulting from the viewing by the witnesses of the defendant at the defense table shortly before trial and then being asked individually by the prosecutor whether the defendant was the person seen robbing the bank, are effectively answered in United States v. Hamilton, supra. On the authority of Hamilton, we reject this leg of appellant's argument for relief.

VI. EXPERT TESTIMONY

The basic purpose of any proffered evidence is to facilitate the acquisition of knowledge by the triers of fact thus enabling them to reach a final determination. As often stated, our system of evidence rests on two axioms: only facts having rational probative value are admissible and all facts...

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