Unpublished Disposition, 872 F.2d 431 (9th Cir. 1987)

MEMORANDUM^** 

Ricky Thomas and David Bell appeal their convictions, following a jury trial, for conspiracy to commit bank robbery, in violation of 18 U.S.C. § 371, and bank robbery, in violation of 18 U.S.C. § 2113(a). Both Thomas and Bell claim numerous constitutional and evidentiary errors. Bell alone appeals the denial of his motion for a new trial pursuant to Fed. R. Crim. P. 33. We affirm.

FACTS

David Bell, Ricky Thomas and Gail Bolds were indicted for robbing and conspiring to rob banks located in Millbrae and Hayward, California. Evidence disclosed at trial indicated the following sequence of events.

Bolds testified she met Thomas in 1985 and corresponded with him until 1986. At that time, Thomas introduced Bolds to Bell. Bolds testified that in September 1986, the three drove to Bakersfield where they persuaded Beverly Wheeler to rent a motel room for them. Ms. Wheeler separately identified Thomas and Bell as persons in a car of people she aided in Bakersfield the evening of September 7.

Bolds further testified that the day after arriving in Bakersfield, September 8, 1987, the three decided to rob a bank. Bell selected the bank to rob and gave Bolds an unloaded weapon. Bolds robbed the Bakersfield bank and returned to the car, and Bell drove back to Oakland. During the robbery, Thomas stood outside the bank.

On two other occasions, September 12, 1986 and October 3, 1986, Bolds, Bell and Thomas robbed banks in Hayward and Millbrae, California. In both robberies, Bell drove, Thomas stood outside, and Bolds robbed the bank.

A few minutes after the Millbrae robbery, a police officer followed and stopped their car. Bolds testified that while she, Thomas and Bell were being followed by the police they devised an exculpatory story. Essentially, the three agreed to say that Bell and Thomas did not know Bolds.

The three were arrested and then questioned separately. Bell and Thomas stated to police that they had been out driving when they met a woman unknown to them. While they were in Millbrae, the woman disappeared for ten minutes, and then reappeared. All three then got in the car, drove away and were subsequently arrested.

Shortly after the arrests, Thomas called Ada Watts, Gail Bolds' mother, stating that, "Gail and he and David had gotten into trouble," and told Watts to tell Gail "don't talk to those white folks, don't let them brainwash her." Bell then took the phone and told Watts, "Ada, this is David. Ricky tells me that Gail is getting scared. Tell Gail don't be talking to those whites [sic] folks and telling them nothing, as I thought Gail knew what was happening. We planned to state what we said." Then Thomas got back on the telephone and repeated his previous admonitions.

While in jail, Thomas and Bolds continued to correspond. Portions of letters from Thomas to Bolds urged her not to cooperate with the police.

Thomas and Bell were convicted following a jury trial. They timely appeal. One year after conviction, Bell moved for a new trial based on allegations of newly discovered evidence and ineffective assistance of counsel.

CONTENTIONS AND ANALYSIS

Bell and Thomas both contend that the FBI used improperly suggestive methods to obtain a pretrial photographic identification from Beverly Wheeler, rendering her later in-court identification a violation of due process. We review the constitutionality of pretrial photographic identification procedures independently. United States v. Givens, 767 F.2d 574, 580 (9th Cir.), cert. denied, 474 U.S. 953 (1985).

A two-step test determines whether a pretrial identification or testimony based on such an identification should be admitted. First, the court determines whether the identification procedure is so impermissibly suggestive as to give rise to a substantial likelihood of irreparable misidentification. Id. at 581. Second, if the procedure is found to be overly suggestive, the court determines whether the identification is nonetheless reliable. Manson v. Brathwaite, 432 U.S. 98, 114 (1977); Givens, 767 F.2d at 581.

Here, FBI agents showed Wheeler photographs of defendants three months after the Bakersfield robbery. She recognized the faces immediately but could not remember where until asked if she remembered renting a room. She then recalled renting a motel room for the persons pictured. Her description of the events corroborated other evidence in the case.

In attacking the identification as unduly suggestive and unreliable, defendants stress that no other persons' pictures were shown to the witness. Defendants overlook, however, that this witness was not the victim of a crime, and had not even been advised of the particular crime under investigation when shown the pictures. The procedure did not unduly suggest that these defendants had committed this crime. In addition, the corroborative details provide significant indicia of reliability. The admission of the identification was not error.

Thomas contends that the district court erred in not granting an evidentiary hearing regarding the admissibility of a witness' identification of Thomas and Bell. We review the district court's decision to deny a hearing on the admissibility of identification evidence for an abuse of discretion. See United States v. Davenport, 753 F.2d 1460, 1462 (9th Cir. 1985). Thomas does not even allege unduly suggestive circumstances. The witness identified photos of Thomas and Bell out of two separate six-photograph displays. The district court did not abuse its discretion by refusing to hold an evidentiary hearing. See Id.

Both Bell and Thomas challenge on a number of grounds the admission and use of three categories of post-arrest statements.

The first category comprises statements made to the FBI by both Bell and Thomas indicating they had never met Gail Bolds and were not aware that she had robbed a bank. Bell challenges the admissibility of Thomas' statement, contending that as to him, the statements constitute inadmissible hearsay and a violation of his right to confront witnesses. The district court's decision to admit evidence over a hearsay objection is reviewed for an abuse of discretion. See United States v. Cowley, 720 F.2d 1037, 1038 n. 1 (9th Cir. 1983), cert. denied, 465 U.S. 1029 (1984). The difficulty with appellants' hearsay argument is that the statements were not offered for the truth of their contents. Rather they were offered to show that false statements had been made. They were not hearsay and therefore not inadmissible on that ground. See United States v. Hackett, 638 F.2d 1179, 1186-87 (9th Cir. 1980), cert. denied, 450 U.S. 1001 (1981). We therefore do not need to reach any issues regarding whether the statements came within the co-conspirators exception to the hearsay rule.

The next category of challenged statements come from the letters written by Thomas to Bolds while Thomas was in prison. Bell challenges the admissibility of these statements and suggests that their admission against Thomas was so prejudicial to Bell as to require severance of his trial from Thomas'. Failure to grant separate trials is reviewed for an abuse of discretion. See Cowley, 720 F.2d at 1040. Any reference to Bell in the letters, however, was redacted. Bell suggests that references in the letters to "we" or "our" nevertheless implicated him, but such words in proper context were clearly referring to Thomas and Bolds, not to Thomas and Bell. Under the principles enunciated by the Supreme Court in Richardson v. Marsh, 481 U.S. 200, 107 S. Ct. 1702, 1709 (1987), there was no abuse of discretion in connection with the use of the letters.

Bell also contends that Thomas' letters should not have been admitted because Bolds was working as a federal agent and elicited the letters from Thomas in violation of Thomas' right to counsel. A defendant's right to counsel is personal, however, and cannot be vicariously asserted by a co-defendant. United States v. Shapiro, 669 F.2d 593, 598 (9th Cir. 1982); United States v. Partin, 601 F.2d 1000, 1006 (9th Cir. 1979), cert. denied, 446 U.S. 964 (1980). Moreover, there is no support in this record for the assertion that the police and Bolds deliberately designed to elicit incriminating remarks from Thomas. See Kuhlmann v. Wilson, 477 U.S. 436, 459 (1986); Brooks v. Kincheloe, 848 F.2d 940, 944-45 (9th Cir. 1988).

The third category consists of telephone statements of both Thomas and Bell, as testified to by Ada Watts, Bolds' mother. Bell and Thomas each challenge the use of the statements of the other, and Bell independently contends that there was an insufficient foundation for Watts' identification of his voice. The district court's determination of sufficient foundation for voice identification is reviewed for an abuse of discretion. United States v. Miller, 771 F.2d 1219, 1234 (9th Cir. 1985). With respect to the voice identification, it is not necessary for the person being called to recognize the voice so long as additional circumstances, including the contents of the statements challenged and identification by others involved in the call, provide foundation for establishing the identity of the caller. Id. The circumstances in this case, including Thomas' use of Bell's first name and references to interests which Bell and Thomas had in common, provide sufficient foundation for the identification of Bell as the caller.

In assessing the appellants' challenge to admission of their co-defendant's statements, we first look to the nature of those statements. Ada Watts testified that Thomas said:

You know, Gail and he and David had gotten into trouble. And he told me to tell Gail: Don't talk to those white folks. Don't let her ... don't brainwash her, you know, because they was going to do a twist.

Watt also testified that Thomas then told her that Bell wanted to speak to her, and the statement attributed to Bell was as follows:

Ada, this is David. Ricky tells me that Gail is getting scared. Tell Gail don't be talking to those whites folks and telling them nothing, as I thought, as I thought Gail knew what was happening. We planned to state what we said.

Although Bell and Thomas each challenge the statement of the other as hearsay, we observe initially that much of each statement was not offered for the truth of any assertion, and hence is not hearsay. See Hackett, 638 F.2d at 1186; see also United States v. Shepherd, 739 F.2d 510, 514 (10th Cir. 1984) (orders or instructions to frighten third party are not hearsay because they are neither true nor false). The only aspect of the statements which, if accepted as true, would tend to incriminate the defendants are those aspects which indicate that both lied about their non-involvement in the crime. In this regard, the statement attributed to each defendant was clearly admissible as to himself. The only question is the effect that the evidence of the other defendant's statement had on the fairness of the proceedings for each appellant. Since each of the defendants made statements in the same conversation that were in material respects similar,¹  the government argues persuasively that each of the defendants adopted the statements of the other. We need not decide the issue on that ground, however, since the incremental prejudice of the admission of the co-defendant's similar statement was so small, whether considered as a violation of the rules against hearsay or as a violation of the Sixth Amendment Confrontation Clause, that the result could not have been affected. See Harrington v. California, 395 U.S. 250 (1969) (admission of non-testifying co-defendant's confession implicating defendant was harmless error where evidence was only cumulative to defendant's own inculpatory statements); United States v. Fox, 613 F.2d 99, 101 (5th Cir. 1980) (admission of testimony that both co-defendants made same inculpatory statement was not prejudicial even if in violation of rules against hearsay). There was no reversible error.

Bell's claim of insufficiency of the evidence is without merit.

Bell contends that the district court erred in denying his request for a new trial pursuant to Fed. R. Crim. P. 33. His motion was based upon allegations of newly discovered evidence and ineffective assistance of counsel. Denial of a motion for a new trial based on newly discovered evidence is reviewed for an abuse of discretion. United States v. Kenny, 645 F.2d 1323, 1343 (9th Cir.), cert. denied, 452 U.S. 920 (1981). The evidence upon which Bell was apparently relying was not "newly discovered," as the district court properly observed. Any claim for ineffective assistance of counsel was barred by the provisions of Rule 33, which require that motions for new trial based on grounds other than that of newly discovered evidence be brought within seven days of judgment. Here, Bell's motion for a new trial came nearly a year after his conviction, and his claim that his counsel was ineffective is based on information available to him at trial. See United States v. Lara-Hernandez, 588 F.2d 272, 275 (9th Cir. 1978) (motion claiming ineffective assistance of counsel based on facts known to the defendant at trial was denied because brought more than seven days after conviction).

AFFIRMED.