Unpublished Disposition, 845 F.2d 329 (9th Cir. 1988)

MEMORANDUM^* 

Defendant-appellant David Mairs, Jr. (Mairs) appeals his conviction after jury trial of one count of armed bank robbery in violation of 18 U.S.C. § 2113(a) (d) (1). We affirm.

The National American Bank in San Francisco was robbed in October 1986. A month after the robbery Sergeant Bruce Marovich of the San Francisco police department received the robbery surveillance photographs and recognized the robber in the pictures as David Mairs, Jr., the son of Sergeant Marovich's long-time friend David Mairs, Sr.

During the trial, over the defendant's objection, Sergeant Marovich testified that after he recognized Mairs in the photographs, he called the defendant's father and met with him; that he had one of the surveillance photographs with him during the meeting; and that shortly after the meeting Marovich called the FBI about his identification of the defendant in the pictures.

During his closing argument, the prosecutor, Mr. Nadel, stated that Sergeant Marovich showed the surveillance photograph to the defendant's father during their meeting. In fact, Sergeant Marovich did not testify that he showed the photograph to Mr. Mairs, Sr. Mairs objected to the misstatement.

Mairs first contends the district court erred by admitting Marovich's testimony about his meeting with the defendant's father. He argues the testimony was irrelevant and unfairly prejudicial.

We review a district court's evidentiary rulings for an abuse of discretion. United States v. Poschwatta, 829 F.2d 1477, 1481 (9th Cir. 1987) "To determine whether the district court abused its discretion, we review whether the decision considered the relevant factors and whether there has been a clear error of judgment." United States v. De Rosa, 783 F.2d 1401, 1408 (9th Cir. 1987). We apply the harmless error rule. Id.

The district court found Marovich's testimony was relevant because it "confirms the legitimacy of his recognition and identification, it wasn't just something he made up afterwards."

Even if we concluded the district court erred in determining this portion of Marovich's testimony was relevant, the error was harmless. There was overwhelming evidence that it was Mairs in the surveillance photographs. George Shull, Terra Shull and Christine Brownlee, all of whom were well-acquainted with Mairs, identified him. Moreover, Marovich's identification was based on his knowing the defendant since birth.

Assuming the testimony was relevant, we do not find it was more prejudicial than probative. In the absence of the inference that Mairs' father confirmed to Marovich that it was his son in the photographs, there was more than sufficient evidence that it was Mairs in the picture.

Mairs inappropriately relies on United States v. Griffin, 778 F.2d 707 (11th Cir. 1985). In Griffin the district court allowed an FBI agent to testify that the government had subpoenaed but could not locate Griffin's coconspirator to testify. The Eleventh Circuit reversed, and held the agent's testimony was irrelevant and unfairly prejudicial.

The court stated that the testimony invited "the jury to determine a matter not properly before it: whether the defendant was involved in the witness' disappearance to conceal his guilt." Id. at 709. In the present case, at most, Marovich's testimony left the impression that the defendant's father confirmed Marovich's identification of the defendant. Identification was the main issue before the jury.

Mairs next contends Mr. Nadel committed prosecutorial misconduct during his closing argument by stating that Sergeant Marovich showed the surveillance photographs to Mairs's father when Marovich did not so testify.

Prosecutorial comments to which defendant objects are reviewed for "harmless error." United States v. Young, 470 U.S. 1, 13 n. 10 (1985); United States v. Endicott, 803 F.2d 506, 513 (9th Cir. 1986). Reversal is justified only if it appears more probable than not that the alleged misconduct materially affected the fairness of the trial. United States v. Polizzi, 801 F.2d 1543, 1558 (9th Cir. 1986). See also United States v. Chavez-Vernaza, 834 F.2d 1508, 1516 (9th Cir. 1987).

Contrary to the government's contention that the prosecutor did not argue facts not in evidence, we find that he did. However, we do not find that the prosecutor's improper remark materially affected the verdict. The bank tellers' testimony coupled with the identification by the Shulls, Ms. Brownlee and Sergeant Marovich leads us to conclude the verdict would have been the same without the prosecutor's comment. We find the prosecutor's comments did not amount to prejudicial error.

Finally, Mairs contends he was denied his sixth amendment right to confront witnesses because he was unable to cross-examine his father. We disagree.

Mairs reliance on Hutchins v. Wainwright, 715 F.2d 512 (11th Cir. 1985) is misplaced. There the prosecutor in his closing argument referred to statements made by an eyewitness unidentified informant who did not testify. "This violated the defendant's right to confront the anonymous, non-testifying witness." Id. at 515. In the present case there was no reference to any statements made by the father.

The conviction is AFFIRMED.