Unpublished Disposition, 846 F.2d 1383 (9th Cir. 1985)

No. 87-3039.

United States Court of Appeals, Ninth Circuit.

Before CYNTHIA HOLCOMB HALL and O'SCANNLAIN, Circuit Judges, and WILLIAM D. KELLER,^***  District Judge.

MEMORANDUM^** 

Johnson appeals his conviction for receipt of money stolen from a bank. We affirm.

FACTS AND PROCEEDINGS

On August 5, 1985 two men robbed the United States National Bank in Tigard, Oregon. One man, wearing a blue wig, demanded money from the bank's tellers. The second man--later identified as Johnson--had his hand inside a bag, apparently holding a weapon. The two men took about $9,000 in bundles of various denominations. The bundles were held together by paper clips, and included "bait bills" (currency whose serial numbers had been prerecorded in case of a robbery).

The two men left the bank in a silver Honda. Several hours later, the FBI arrested Johnson with the owner of the silver Honda. On Johnson's side of the car, they found a hat and shirt that matched a description of clothing worn by one of the two men seen in the bank. Johnson also had in his pockets $2,400 in cash, which included $35 in bait bills from the bank. Much of the cash was bundled together with paper clips. At trial, Johnson claimed that he had received the money from a drug sale and from his winnings at the race track and that he was given the clothing.

Two weeks after the robbery, authorities asked Joyce Mick, a bank teller, to try to make an identification from a photographic array that included Johnson. However, after looking at the array for five minutes, Mick could not identify Johnson as the second man.

Eight weeks later, Mick came to court and identified Johnson as the second man. She was completely sure in this identification. Mick asserted that she failed to identify Johnson from the photographic array because (1) the FBI told her to choose only if she was 100% sure; and (2) the array depicted only faces, and her identification required an opportunity to observe a person's general physical appearance.

On four occasions during the prosecutor's closing argument, the district court instructed the jury that its recall of the evidence was controlling and the lawyers' arguments were not evidence.

The jury considered Johnson's liability on two counts (1) unarmed bank robbery, 18 U.S.C. § 2113(b); and (2) possession of stolen bank money, 18 U.S.C. § 2113(c). After deliberation, the jury acquitted Johnson on Count 1, but convicted him on the second count. Johnson then filed a motion for acquittal on the second count. The district court granted the motion. But this court reversed that decision in United States v. Johnson, 804 F.2d 1078 (9th Cir. 1986). On remand, the district court sentenced Johnson to four years on the second count--felony possession of stolen bank money, 18 U.S.C. § 2113(c). Johnson filed a timely appeal.

DISCUSSION

Johnson argues that Joyce Mick's in-court identification of him should not have been admitted because the pretrial identification procedure was impermissibly suggestive and therefore undermined the reliability of the in-court identification and, for this reason, his conviction should be reversed. We disagree. Our review is de novo. United States v. Johnson, 820 F.2d 1065, 1072 (9th Cir. 1987).

We find that we need not decide whether the district court erred in admitting the identification because any error would be harmless. If, apart from Mick's identification, there exists overwhelming independent evidence against Johnson, then any error in admitting the in-court identification was harmless beyond a reasonable doubt. United States v. Stubblefield, 621 F.2d 980, 983 (9th Cir. 1980). Here, such evidence exists. Johnson was found just hours after the bank robbery with (1) $35 in bait money; (2) $2,400 in cash; (3) money paper clipped in a manner identical to that used by the bank; and (4) a Panama hat similar to that seen on the second bank robber. This evidence is overwhelming evidence of the crime for which Johnson was convicted--possession of stolen bank money.

Johnson claims that the prosecutor made a number of comments that constitute reversible misconduct both during cross-examination and in closing argument. We disagree.

Johnson claims that prosecutor's comment on cross-examination--"you know I can't prosecute you for that ..."--laid a prejudicial allegation before the jury that warrants reversal. By sustaining the defense objection, the district court cut the prosecutor off in mid-sentence, thus indicating the court's disapproval of the question. And the prosecutor failed to follow up this remark anywhere else in the court proceeding. In such circumstances, the remark was harmless. See United States v. Endicott, 803 F.2d 506, 513 (9th Cir. 1986).

Johnson contends that certain remarks constituted vouching. Vouching occurs if the prosecutor either places the government's prestige behind one of its witnesses or indicates that information not given to the jury supports a witness's testimony. United States v. Dadanian, 818 F.2d 1443, 1445 (9th Cir. 1987).

We have considered the remarks cited and we hold that none constitutes vouching. In none of the remarks does the prosecutor either place the government's prestige behind a witness or indicate that information not given to the jury supports a witness's testimony.

Johnson contends that the prosecutor on two occasions improperly discussed two extra-record facts during his closing argument: (1) La Rhod is fifty-seven; and (2) drug dealers fear drug "rip-offs." We disagree. Johnson did not object to these comments at trial, so they can only be reviewed for plain error. See Endicott, 803 F.2d at 513. Under this standard of review, the comments are not grounds for reversal. See United States v. Paris, 827 F.2d 395, 398 (9th Cir. 1987).

Johnson argues that the prosecutor impermissibly commented on his failure to testify. Since Johnson did testify, this argument is without merit.

Johnson claims that the prosecutor made an improper probability argument ("Of all the people in Portland, the one that should come out of that house with Eugene Marzolf happens to be the defendant"), citing United States ex rel DiGiacomo v. Franzen, 680 F.2d 515, 518 (7th Cir. 1982). We find that Franzen is inapposite. The comment is not improper but is permissible summation argument attacking credibility of Johnson's testimony.

Johnson claims that the prosecutor made an inflammatory comment ("But some of these people back there in the back of the courtroom have rights that are to be protected too"). We find that this remark does not warrant reversal. Concededly, it was improper, but the district court instructed the jury to consider only the evidence and that the lawyers' arguments were not evidence. This instruction cured the error and rendered it harmless. See Endicott, 803 F.2d at 513.

3. Sentence for Felony Receipt of Stolen Bank Money

Johnson asserts that the district court could not sentence him for felony receipt of stolen bank money because Count 2 of the indictment failed to specify the amount of money involved.¹  Johnson claims that the fact that Count 1 indicated that $9,000 was stolen does not cure the defect in Count 2. We disagree. Our review is de novo. United States v. Normandeau, 800 F.2d 953, 958 (9th Cir. 1986).

We have held that an indictment is sufficient if it states the elements of the offense charged with sufficient clarity to notify the defendant of the charges against him so he can prepare an adequate defense. See United States v. Krasovich, 819 F.2d 253, 254 (9th Cir. 1987). In ascertaining whether an indictment serves this function, we will read an indictment in its entirety and construe the indictment according to common sense. Normandeau, 800 F.2d at 958. At bottom, we will inquire into whether an error or omission in the indictment worked to the prejudice of the accused. Id.

Here, we hold that Johnson can be sentenced to felony receipt of stolen bank money. Count 1 of the indictment put Johnson on notice that Count 2 would involve a felony because Count 1 indicates that more than $100 was taken. Therefore, the failure of Count 2 to specify the amount of money involved did not prejudice Johnson. See id.

AFFIRMED.