Unpublished Disposition, 842 F.2d 1295 (9th Cir. 1988)

MEMORANDUM^* 

Defendant Rich appeals his convictions of bank robbery, attempted bank robbery, and escape from custody.

Rich argues he was arrested without probable cause. Officers were surveilling Rich for a number of reasons: he rented a car used as a getaway car in a prior bank robbery, and was seen in the vicinity of the robbed bank shortly before the robbery; employees of several robbed banks reviewed FBI photo spreads and identified Rich as the robber; other eyewitnesses to these robberies gave physical descriptions that matched Rich's; and Rich admitted to a wired informant that he had robbed several banks and sought the informant's aid in committing additional robberies. During the surveillance, a few hours before the arrest, Rich was observed sitting in his car outside another bank and watching its front entrance. He went to the east side doors, entered, looked around briefly, then left. A minute later he went to the west side entrance, "knelt down, grabbed hold of the stocking cap, started to pull it down over his face ..., looked around the bank area," and then left. Immediately before Rich's arrest, his car was seen in the parking lot near the United Bank, the passenger-side window was left unrolled and the door open. Rich was then seen running towards his car while changing his clothes, carrying a paper bag, and wearing a bandana around his neck, and it was announced over the officers' car radio that the United Bank had just been robbed.

Rich argues that no probable cause existed because the officers did not have a physical description of the perpetrator, and because running to a car, carrying a paper bag and removing one's clothes are innocent acts.

The argument is frivolous. In deciding whether a particular set of facts establishes probable cause, we "assess the totality of the facts and circumstances known to the officer [s]...." United States v. Woods, 720 F.2d 1022, 1028 (9th Cir. 1983). Considered as a totality, the facts were more than sufficient to establish the requisite "fair probability that appellant [] had committed a crime." Id. See Sibron v. New York, 392 U.S. 40, 66 (1968) (flight, when combined with particularized suspicions about the suspect, can give rise to probable cause); People of the Territory of Guam v. Ichiyasu, No. 87-1121 (9th Cir. Feb. 1, 1988), slip op. at 1251-52 (finding probable cause largely because of suspect's flight from scene of recent crime and efforts to avoid police, even though police had no description of perpetrator).

2. Reference to Defendant's Refusal to Incriminate Himself

The prosecutor elicited testimony that Rich refused to incriminate himself after receiving Miranda warnings.¹  Rich argues such references violate the rule of Doyle v. Ohio, 426 U.S. 610 (1976). There was no objection to the testimony. If plain error occurred, it was harmless beyond a reasonable doubt. The evidence that Rich robbed several banks was overwhelming.²  Rich's primary defense was insanity, not that he did not rob the banks. The objectionable questions and answers occupied seconds in a nine-day trial. Rich's failure to deny the crime was not otherwise referred to by the prosecutor, defense counsel, or judge. See United States v. Valencia, 773 F.2d 1037, 1043-44 (9th Cir. 1985) (finding Doyle error harmless); United States v. Muniz, 684 F.2d 634, 637-38 (9th Cir. 1982) (same); United States v. Remigio, 767 F.2d 730, 734-36 (10th Cir. 1985) (error was plain but also harmless). By failing to object to the officers' testimony, Rich waived his related argument that the trial court should have excluded evidence of his non-denial under Fed.R.Evid. 403 as more probative than prejudicial. See United States v. Greene, 698 F.2d 1364, 1377 (9th Cir. 1983) (Fletcher, J., concurring).

Rich argues his post-arrest statements should have been excluded because he did not knowingly and voluntarily waive his Miranda rights. The only evidence contrary to the district court's finding of waiver was Rich's testimony that he was usually under the influence of drugs during the period of several months around the time of his arrest. Rich testified he could not remember whether he took drugs that day, whether he spoke to the officers, or whether he received Miranda warnings.

The validity of a waiver is determined from the "totality of circumstances." United States v. Most, 789 F.2d 1411, 1417 (9th Cir. 1986). Rich had been observed driving his car most of the day and had just undertaken high-speed evasive maneuvers in an effort to escape. An officer gave Rich Miranda warnings before Rich was asked or said anything. It was Rich, not the officer, who initiated the conversation. Another officer gave Rich a fresh set of warnings, and re-warned Rich in the middle of the questioning. Rich signed a waiver form given him by the officer. The officer present at the signing testified Rich appeared "calm and collected" and gave no indication he did not understand his rights or his waiver of them. The finding of conscious and intelligent waiver was fully supported by the record. See Wernert v. Arn, 819 F.2d 613, 616 (6th Cir. 1987) (drug and alcohol ingestion did not vitiate waiver where defendant drove that day and officers said she appeared normal).

Rich argues the trial court abused its discretion in refusing to sever the attempt charge because the evidence of attempt was "relatively weak." Rich's characterization of the evidence is questionable: a bank teller identified Rich in a pre-trial lineup and at trial as the man who said to her "this is a holdup, I have a gun," placed his right hand in a brown paper bag and pointed at her. She told the man to be quiet, for at that moment she did not take him seriously. However, she testified she realized a moment later that a real holdup had occurred, and was frightened. Her co-worker identified Rich as the attempted robber at a lineup and at trial. Rich argues there was insufficient evidence of fear or intimidation. This is not an essential element of attempted robbery. United States v. McFadden, 739 F.2d 149, 151-52 (4th Cir. 1984); United States v. Stallworth, 543 F.2d 1038, 1040 (2d Cir. 1976). Possible prejudice was minimized by an instruction to consider each charge separately. The trial court did not abuse its wide discretion when it declined to sever the attempt charge.

The jury heard portions of a taped conversation between Rich and a wired informant in which Rich boasted of his various robberies and his successful use of the "Vietnam stress" theory to escape conviction. The tape was introduced solely to rebut the insanity defense. Rich argues the tape should have been excluded for three reasons:

1. The FBI was unable to produce the informant at trial. Since defendant's own statements were introduced, not the informant's statements, there is no Confrontation Clause problem. The only issue is whether unavailability of the informant denied Rich a fair trial.

Rich argues the informant was needed to determine whether the tape was authentic. The tape was properly authenticated by the testimony of the officer who set up the taping equipment and listened to the conversation as it was being taped. United States v. Turner, 528 F.2d 143, 163 (9th Cir. 1975) (per curiam). Rich has not suggested how the informant's testimony could have made a difference in the jury's determination of authenticity.

Rich argues the informant may not have consented to the taping. An officer testified that the informant gave his consent and two consent forms with the informant's signature were introduced. Moreover, the recording itself contains statements by the informant consenting to the taping.

Rich argues that examination of the informant would have established that Rich's taped statements were unreliable. Although Rich's statements to the informant were boastful and fanciful in parts, they were not introduced for the truth of the matter asserted, but for the purpose of showing that Rich was not insane: that he knew his acts were unlawful and was capable of devising complex plans for committing robberies and avoiding conviction.

Rich complains that only portions of the tape were played to the jury, and "the innocent character of the conversation was lost due to editing." The trial judge twice offered Rich's counsel the opportunity to play all or additional parts of the tape to the jury. Counsel refused, stating that the omitted portions were too prejudicial to Rich. Rich cannot now complain that the tape was edited by the court.

Rich argues the tape is inadmissible in federal court because a Washington statute makes it unlawful to tape a conversation unless both parties have consented. We have repeatedly rejected this argument. United States v. Daniel, 667 F.2d 783, 785 (9th Cir. 1982) (per curiam) ("the use of wiretap information acquired by federal officers in violation of state law but in compliance with [the federal wiretap statutes] does not breach federal law.... There is no basis for excluding it."); United States v. Hall, 543 F.2d 1229, 1233-35 (9th Cir. 1976) (en banc); United States v. Keen, 508 F.2d 986, 989 (9th Cir. 1974) (involving same Washington consent law).

Rich argues the insanity instructions should have required the jury to determine whether he was "unable to conform his conduct to the requirements of the law." The trial judge used the language of 18 U.S.C. § 17, establishing as the test of insanity whether the defendant was "unable to appreciate the nature and quality or the wrongfulness of his acts." There was no error.

Rich argues that the instruction on attempted robbery should have used the phrase "firm intent," found in the Ninth Circuit Model Instruction, rather than simply "intent." He also objects to departure from the Model Instruction on reasonable doubt. A defendant has no right to the Model Instructions, word-for-word. "A trial court is given substantial latitude in tailoring jury instructions so long as they fairly and adequately cover the issues presented.... Neither party, including a criminal defendant, may insist upon any particular language." United States v. Soulard, 730 F.2d 1292, 1303 (9th Cir. 1984) (citations omitted).

Rich argues that the lineup procedure was unnecessarily suggestive because he was in the third position in both the photo montage and the subsequent lineup. Rich did not raise this objection below, and there was no plain error. The procedures used were not impermissibly suggestive: the lineup occurred several weeks after the witnesses were shown the photo montage, and they were unlikely to recall and associate the persons in a particular position in the two displays.

Even if the arrangement had been impermissibly suggestive, the in-court identification testimony was properly allowed because of its reliability. Many of the bank employee witnesses were trained in observation techniques in bank robberies. They had a minute or more to observe Rich, viewed the photo montage shortly after the robbery, and viewed the lineup within a month or two of the robbery. The discrepancies in the identification testimony to which Rich points are minor.

Rich argues his photo was taken from a "mug shot," and thus informed the jury that he had been arrested on a previous occasion. There was nothing in the photos to show they were in fact "mug shots" (no identification numbers or obvious prisoner clothing). We have found it within the discretion of the trial judge to admit such photos. United States v. Terry, 760 F.2d 939, 943-44 (9th Cir. 1985). See also Reiger v. Christensen, 789 F.2d 1425, 1429-31 (9th Cir. 1986).

Rich argues it was unfairly prejudicial to admit testimony by two tellers regarding their feelings following the robbery. Rich admits the tellers' reaction during the robbery was relevant to the "intimidation" element of the offense. The fact that a teller was upset after a robbery made it more likely that she was intimidated during the robbery, than if afterwards she had been calm.

Rich's sentence was not excessive. He could have been sentenced to 105 years in prison. Instead, he received a 30-year prison sentence and 5 years probation. Since his sentence was below the statutory maximum, " [i]n order to reverse for resentencing, the record must reveal that the sentencing court refused to exercise or exceeded the bounds of its almost absolute discretion." United States v. Browne, 829 F.2d 760, 767 (9th Cir. 1987) (citation omitted). The trial court's imposition of less than the maximum sentence reflects consideration of Rich's arguments that he had not used a gun and was mentally ill.

AFFIRMED.