Unpublished Disposition, 885 F.2d 875 (9th Cir. 1987)

MEMORANDUM^*

We consider whether the jury had sufficient evidence to convict Frederick J. Lee of two counts of armed bank robbery. We also consider whether the court properly denied in part and granted in part his motion to exclude relevant evidence and its denial of his motion to sever. We affirm.

BACKGROUND

The government charged Lee and co-defendant Daniel Urquhart with two counts of armed robbery, one count of possession of stolen money and one count of possession of a firearm by a felon. A joint trial followed the court's denial of Lee's motion to sever. At the conclusion of the government's case, Lee moved for acquittal based on insufficient evidence, which the court denied. After a six-day trial, the jury returned a guilty verdict on all four counts.

ANALYSIS

Lee argues that the court should have granted his motion to acquit because there was insufficient evidence to convict him. He claims that the government presented only circumstantial evidence and failed to present eyewitness testimony identifying him as the robber.

Viewing the evidence in the light most favorable to the prosecution, we decide whether any rational juror could have found the essential elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); United States v. Brodie, 858 F.2d 492, 497 (9th Cir. 1988). The jury may consider both circumstantial and direct evidence. United States v. Ramirez-Rodriguez, 552 F.2d 883, 884 (9th Cir. 1977).

The essential elements of armed robbery are that the defendant (1) took money from an FDIC-insured bank and its employees; (2) used force or intimidation; and (3) assaulted or jeopardized bank employees' lives by using and displaying a firearm. 18 U.S.C. § 2113(a) and (d).

The evidence was sufficient for a rational juror to conclude that the government established the elements of the crime and identified Lee as the robber. The first robbery of the Idaho First National Bank was on October 2, 1987, and the second of the First Security Bank on October 19. In both, the witnesses' descriptions of the robber and his clothing matched. They matched Lee's physical characteristics. Witnesses noted the robber's white Reebok athletic shoes, a pair of which Lee wore when police arrested him. Police also found in Lee's room a dark semi-automatic pistol similar to one carried by the robber.¹ 

Before each robbery, the robber stole the same Park Department truck. The police found glass fragments which the jury could believe were from the truck's windows among the money, the gun and Lee's belongings. They found Reebok shoe prints near where the truck was parked. Witnesses saw red smoke from the dye packs billowing from the Park Department getaway truck. The FBI found red dye in the truck and on one of the bills in Lee's possession.

Finally, police linked Lee to both robberies through marked bills. When they arrested him, he was carrying $2,900, including one "bait bill" from the second robbery stained with red dye from the first robbery.²  Considering all evidence in the light most favorable to the prosecution, a reasonable juror could find Lee guilty of armed bank robbery.

First, Lee contends that the court abused its discretion by denying his motion to sever his trial from Urquhart's. Before and during trial, Lee moved to sever based on Urquhart's expected duress defense testimony. The court later refused to admit the duress defense testimony, and subsequently denied Lee's motion to sever.

Because the court excluded the duress testimony on which Lee based his motion, we find no abuse of discretion. See United States v. Catabran, 836 F.2d 453, 459-61 (9th Cir. 1988).

Second, Lee claims for the first time that Urquhart's counsel's closing argument was so prejudicial that it prevented a fair and impartial trial, and that the court sua sponte should have severed his trial from Urquhart's. In closing argument Urquhart's counsel said:

I seriously doubt that any of you do not believe that Rick Lee pulled off the bank jobs. I think the government has proven that.

To preserve a motion to sever it must be timely made and maintained properly or the right to sever will be waived. United States v. Kaplan, 554 F.2d 958, 965 (9th Cir.), cert. denied, Dowlig v. United States, 434 U.S. 956 (1977). Generally to preserve a motion on appeal, it must be renewed at the close of the evidence. See United States v. Yarbrough, 852 F.2d 1522, 1531 (9th Cir.), cert. denied, 109 S. Ct. 171 (1988). Only rarely will the trial court's failure to reopen a motion sua sponte be an abuse of discretion. Kaplan, 554 F.2d at 965-66 (citing Byrd v. Wainwright, 428 F.2d 1017, 1019 n. 1 (5th Cir. 1970)).

Lee failed to object during the argument, to request a limiting instruction, or to move for a mistrial. Because he failed to pursue his motion, we deem it waived. See United States v. Free, 841 F.2d 321, 324-25 (9th Cir. 1988); Kaplan, 554 F.2d at 966.

Lee claims that the trial court abused its discretion by allowing two bank tellers to testify that they were pregnant at the time of the robbery. The court allowed testimony about all events at the bank during the robbery, including the tellers' pregnant condition. It found the testimony relevant to demonstrate that Lee intimidated the tellers and threatened their lives by displaying and using a firearm.

In a charge of attempted bank robbery in violation of 18 U.S.C. § 2113(a), "by intimidation" means to take wilfully, or attempt to take in such a way that would put an ordinary, reasonable person in fear of bodily harm. United States v. Hopkins, 703 F.2d 1102, 1102 (9th Cir.), cert. denied, 464 U.S. 963 (1983). Therefore, the tellers' testimony that they were intimidated was irrelevant. Even if the evidence was admitted improperly, there was no appreciable prejudice.

Lee was well represented on this appeal by appointed counsel.

AFFIRMED.