Unpublished Disposition, 867 F.2d 614 (9th Cir. 1986)

MEMORANDUM^* 

Ennis appeals his judgment of conviction on two counts of armed bank robbery in violation of 18 U.S.C. §§ 2113(a) and (d). Ennis contends that (1) the officers lacked probable cause to arrest him; (2) the officers affected a warrantless arrest upon him in his motel room in violation of his Fourth Amendment rights; and (3) the district court erred in not excluding the evidence seized in the motel room, which included a faded Levi jacket, cowboy boots, two baseball caps, and a black leather wallet with a silver chain attached. We conclude that any alleged violations were harmless error, and we affirm.

* With certain exceptions, harmless error analysis applies to constitutional errors. Rose v. Clark, 478 U.S. 570, 577-80 (1986). The harmless error doctrine applies to Fourth Amendment violations. See Chambers v. Mahoney, 399 U.S. 42, 53 (1970); United States v. Hackett, 638 F.2d 1179, 1185-86 (9th Cir. 1980), cert. denied, 450 U.S. 1001 (1981) (same). "We need not determine whether the jury in fact relied on the tainted evidence in reaching a verdict. We need only conclude that 'it is clear beyond a reasonable doubt that if the jury had not considered' the tainted evidence 'its verdict would have been the same.' " LePage v. Idaho, 851 F.2d 251, 253 (9th Cir. 1988) (quoting Pope v. Illinois, 107 S. Ct. 1918, 1922 n. 6 (1987), but mistakenly attributing the phrase "not considered" to the Pope decision), cert. denied, 109 S. Ct. 506 (1988). A careful examination of the record in the present case indicates beyond a reasonable doubt that if the jury had not considered the tainted evidence, its verdict would have been the same.

With respect to the October 13, 1986 robbery of Citibank, Barbara McCalister, a bank teller, testified that a white, male adult entered the bank, approached her teller window, leaned into her window and demanded that she hand over all the fifty and one hundred dollar bills in her drawer. The robber was no more than two feet from Ms. McCalister. Ms. McCalister complied with the demand and the robber fled on foot. She made an in-court identification of Ennis as the man who robbed the bank and she also testified that she had earlier identified Ennis as the robber in a police lineup.

Another Citibank employee, Mireya Strange, witnessed the robbery from a distance of not more than five feet. When police arrived, she also described the robber as a white male adult with light brown hair, hazel or green eyes, approximately 5'8", 160 pounds, 30-40 years old with an average build, wearing a faded blue denim jacket, Levi's, and reddish brown cowboy-boots. Ms. Strange made an in-court identification of Ennis as the robber and testified that she had picked him out of an earlier police lineup.

As to the October 16, 1986 robbery of the Nevada National Bank, teller Ramon Pardo testified that a white, male adult entered the bank, approached him and demanded that he hand over the large bills. Mr. Pardo complied with the demand and the robber fled on foot. He identified Ennis in court as the robber, and testified that he had earlier chosen Ennis out of a police lineup. Three other bank employees, Sharlet Rae Barker, Rita Kapusky, and Donna Archleta, also testified that Ennis robbed the Nevada National Bank.

During the robbery, Ms. Kapusky, an accounts clerk, was sitting very near the teller line. She testified that Ennis was about five feet from her when he first entered the line. When the robber entered the line that day, Ms. Kapusky's attention was drawn to him because she thought he was cute. She was attracted to his eyes. She watched as the robber went over to Pardo's window and subsequently ran out of the bank. She made an in-court identification of Ennis as the robber and testified that she had earlier chosen him out of a police lineup.

Ms. Archleta was working in the bank on October 16, 1986 in a supervisory capacity. She was sitting near the teller line and she watched the robber as he stood in line for two minutes. The robber was 8-10 feet from her, and he looked at her twice while he was in line. She noticed his face that day, and identified Ennis in court as the robber. She had previously identified Ennis in a police lineup. Ms. Barker was about three feet from Mr. Pardo's window at the time of the robbery and also got a good look at the robber's face. She made an in-court identification and testified that she had identified him out of the police lineup.

All six of these witnesses described the robber to the police immediately following the robberies as a white, male adult with light brown hair, blue or light colored eyes, approximately 5'8", 150 pounds, 26-30 years old with a medium build. He was also described as wearing a blue baseball cap, faded Levi jacket, faded jeans, and brown cowboy boots.

At trial, all six witnesses positively identified Ennis as the perpetrator of these bank robberies.¹  Counsel for defendant had a full and fair opportunity to cross-examine these witnesses and impeach their testimony. Although counsel for defendant attempted to demonstrate inconsistencies in the witness' testimony, his attempts were unsuccessful. The testimony of each witness was credible and unimpeached. Under these circumstances, we deem the admission of evidence seized in the motel room to be purely cumulative and harmless beyond reasonable doubt within the intendment of Chapman v. California, 386 U.S. 18, 23-24 (1967).

AFFIRMED.