Unpublished Disposition, 908 F.2d 978 (9th Cir. 1988)

MEMORANDUM^* 

John Plumes appeals his conviction following a jury trial on three counts of bank robbery, 18 U.S.C. § 2113(a) and (d), and one count of carrying a firearm during the commission of a crime of violence, 18 U.S.C. § 924(c) (1). Plumes filed several pretrial motions relevant to this appeal, including a Motion to Suppress Physical Evidence challenging the searches of his residences and automobiles, a Motion to Suppress Identification Testimony claiming that the testimony of identification witness was the product of impermissibly suggestive procedures, a Motion on Identification Procedures seeking a court-ordered lineup, and a Motion in Limine challenging the admissibility of evidence of his escape from federal custody at the La Grande, Oregon jail in July, 1988. The district court denied all of these motions. In this appeal, Plumes challenges the denial of these motions and the sufficiency of the jury instructions regarding his defense theory and identification testimony. He also alleges a violation of the Speedy Trial Act, 18 U.S.C. § 3161 et seq. We affirm.

ANALYSIS

Plumes claims that his consent to search his Waldport apartment was not voluntary because it was requested in violation of his Fifth Amendment right to counsel. In his view, the warrantless search of his apartment at the time of his arrest was illegal and, thus, tainted his later consent to a more thorough search of the residence.

We review for clear error the district court's determination that the consent to search was voluntary. See United States v. $25,000 U.S. Currency, 853 F.2d 1501, 1506 (9th Cir. 1988).

The fact that Plumes requested an attorney after receiving the Miranda warnings does not bear on the voluntariness of his subsequent consent. The Fifth Amendment right to counsel is separate from the issue of consent to search. Schneckloth v. Bustamonte, 412 U.S. 218 (1973). Accordingly, a request for consent to search is "immeasureably far removed from 'custodial interrogation' " so advising a suspect of his or her rights is not a prerequisite to such a request. Id. at 232. See also Edwards v. Arizona, 451 U.S. 477, 483-84 (1981) (Schneckloth does not control discussion of Fifth Amendment right to counsel because Court was not considering under what conditions an individual could be found to have consented to a search); United States v. Lemon, 550 F.2d 467, 472 (9th Cir. 1977) (A request for consent to search involves "no questioning implicating [a criminal defendant's] fifth amendment rights, and therefore no violation of Miranda, in the elicitation of the consent...."); Cody v. Solem, 755 F.2d 1323 (8th Cir.), cert. denied, 474 U.S. 833 (1985). We, too, have held that police need not give Miranda warnings before requesting consent to search. See United States v. Ritter, 752 F.2d 435, 438 (9th Cir. 1985). If consent searches are permissible when no Miranda warnings are given, it makes little sense to prevent the police from seeking consent after such warnings are given.

We also dismiss Plumes' claim that the initial protective sweep of his apartment following his arrest tainted his later consent. Even if the initial search was improper, the district court's determination that the search did not taint the later consent was not clearly erroneous. In determining the validity of a consent to search given after illegal law enforcement activity we consider: (1) whether Miranda warnings were administered prior to the consent; (2) the temporal proximity of the impropriety to the consent; (3) the presence of intervening circumstances, and (4) the purpose and flagrancy of the official misconduct. See United States v. Delgadillo-Velasquez, 856 F.2d 1292, 1299 (9th Cir. 1988).

Here, the consent was obtained within a half hour of the arrest. Compare United States v. Perez-Esparza, 609 F.2d 1284, 1290 (9th Cir. 1979) (consent to search vehicle within three hours of arrest invalid). Moreover, there was no intervening event sufficient to break the causal connection between the arrest and consent. See Delgadillo-Velasquez, 856 F.2d at 1300. On the other hand, Plumes did receive the Miranda warnings prior to his consent so he was aware of his right to withhold consent. In addition, any misconduct by the agents was not purposeful or flagrant. The agents were in the apartment for only a short time to determine whether there were weapons or other people in the apartment who might pose a threat or who might destroy evidence. As soon as they determined that no one else was present in the residence, they left. More importantly, during the entry the agents observed no evidence and did not use the initial entry as a tool to persuade Plumes to give his consent where he might not otherwise have done so. See Segura v. United States, 468 U.S. 796, 815 (1984) (" [O]ur cases make clear that evidence will not be excluded as 'fruit' unless the illegality is at least the 'but for' cause of the discovery of the evidence. Suppression is not justified unless 'the challenged evidence is in some sense the product of illegal governmental activity.' ").

In light of all of these considerations, we cannot say that the district court's ruling that the consent was voluntary was clearly erroneous.

2. Search of Plumes' Astoria Residence and Automobile Plumes also contends that the district court erred in failing to suppress evidence obtained during searches of his Astoria residence and his yellow 1974 Triumph automobile conducted pursuant to two search warrants. He questions the constitutional validity of those warrants and the affidavits in support thereof. His principal argument is that the affidavits do not show a connection between his Triumph or residence and any evidence sought.

Whether or not the magistrate had sufficient probable cause to issue the warrant, the evidence obtained during the searches was properly admitted at trial. Here, the officers relied in good faith on warrants issued by a detached and neutral magistrate. It was not clear on the face of the warrants that they were issued without probable cause. Under these circumstances, the evidence recovered from Plumes' Astoria residence and automobile was admissible at trial. See United States v. Leon, 468 U.S. 897, 913 (1984). The district court properly denied Plumes' Motion to Suppress.

Plumes argues that the government's practice of showing witnesses single bank surveillance photographs of the bank robber, rather than using multiple photograph displays or lineups, was impermissibly suggestive and compromised the fairness of the trial. The constitutionality of in-court identification procedures is a mixed question of law and fact which this court reviews de novo. Van Pilon v. Reed, 799 F.2d 1332, 1336 (9th Cir. 1986). We may suppress the eyewitness identification testimony only if the pre-trial identification procedure was so impermissibly suggestive as to give rise to a substantial likelihood of misidentification. Simmons v. United States, 390 U.S. 377, 384 (1968).

The government procedure in this case of showing witnesses bank surveillance photographs of the actual robberies was not impermissibly suggestive. See United States v. Stubblefield, 621 F.2d 980, 983 (9th Cir. 1980). Plumes' rights were not jeopardized when the recollection of eyewitnesses was refreshed by the use of photographs of the crime itself. Id. "Little possibility of misidentification arises from the use of photographs depicting 'the likeness not of some possible suspect in the police files, but of the [persons] who actually committed the robbery.' " Id. (quoting United States v. Evans, 484 F.2d 1178, 1186 (2d Cir. 1973). In addition, there was substantial independent evidence against Plumes presented at trial, so Plumes was not convicted solely on the basis of the identifications. Thus, any error in admitting the in-court identifications was harmless.

Plumes also claims that it was unduly suggestive to show some of the teller-witnesses bank surveillance photographs from other, nearby banks which had been robbed within weeks of the time their own banks were robbed. This contention is without merit. The government showed these photographs to the tellers before a criminal complaint had been obtained against Plumes. The tellers were not asked to identify a known suspect; they were asked whether the man involved in similar robberies was the man who had robbed them. These identifications were merely part of the investigative process to determine whether a single man had committed all three robberies.

Since the challenged procedure was not impermissibly suggestive, we do not need to review the reliability of the testimony under the factors outlined in Neil v. Biggers, 409 U.S. 188, 199-200 (1972). See United States v. Bagley, 772 F.2d 482, 492 (9th Cir. 1985), cert. denied, 475 U.S. 1023 (1986).

Plumes contends that the district court erred in denying his request to conduct a "blank line-up" before each of the prospective identification witnesses. He suggests that such a procedure was indispensable to a fair trial in light of the crucial role identification testimony played in the trial.

We review a district court's denial of a request for an in-court line-up for an abuse of discretion. United States v. Domina, 784 F.2d 1361, 1369 (9th Cir. 1986), cert. denied, 479 U.S. 1038 (1987). There is no constitutional entitlement to an in-court line-up to lessen the suggestiveness of an in-court identification. Id. Thus, the district court abuses its discretion in denying such a request only if the resulting in-court identification procedures are so unnecessarily suggestive and conducive to irreparable misidentification as to amount to a denial of due process of law. Id.

As discussed in the preceding section, the in-court identification procedures employed at trial were not unnecessarily suggestive and, as in Domina, the question of guilt or innocence did not hang entirely on the reliability of the in-court identification. Id. For instance, witnesses identified several items of physical evidence recovered from Plumes' home and automobile--clothes, distinctive glasses, bandanas, and a gun--as having been worn or used by the robber during the robberies. Moreover, Plumes' girlfriend testified that Plumes had made incriminating statements linking him to the robberies. The jury also had surveillance photographs of the robberies to assist in evaluating the reliability of the identification testimony of the witnesses. Under these circumstances, the district court did not abuse its discretion in denying Plumes' request for a line-up.

3. Jury Instruction on the Theory of Defense

The trial judge instructed the jury on Plumes' theory of defense as follows:

The theory of the defense is that the government has not proved beyond a reasonable doubt that defendant Plumes was the man who robbed the bank.

Plumes has no problem with this statement as far as it goes. He claims, however, that this instruction was constitutionally inadequate because it failed to summarize his theory that witness identifications of him at trial were inadequate.

When reviewing a claim of error relating to a jury instruction, we view the instructions as a whole and in the context of the entire trial. United States v. Marabelles, 724 F.2d 1374, 1382 (9th Cir. 1984). We review the language or formulation of the instruction for an abuse of discretion. Id. at 1383.

Taken together, the jury instructions adequately conveyed the essence of Plumes' proposed instruction. The court instructions directed the jury to take into account several factors in evaluating a witness including the witness' opportunity or ability to see or hear the things about which he testified, how well the witness was able to recall those things, the opportunity the witness had to observe the offender at the time of the crime, and the circumstances under which identification was later made. The jury instruction on Plumes' theory of defense, in conjunction with these other instructions on evaluating eyewitness testimony, was constitutionally adequate. The district court did not abuse its discretion in instructing the jury on the theory of defense as it did.

4. Jury Instruction on Identification Testimony

Plumes also contends that the instruction the district court gave to the jury regarding identification testimony was constitutionally inadequate. The challenged instruction, however, was essentially a verbatim recitation of Jury Instruction 4.13 from the Manual of Model Jury Instructions for the Ninth Circuit. The comment to the model instruction states: "The Ninth Circuit has held that a general instruction on witness credibility and on the government's burden of proof on the issue of identification will suffice, and that a more particular instruction on identification testimony is left to the discretion of the trial judge. See Guam v. Dela Rosa, 644 F.2d 1257, 1261 (9th Cir. 1980)." The instruction given, in conjunction with the other instructions referred to in the preceding section, was sufficient. The district court did not abuse its discretion with respect to the jury instruction on eyewitness identification.

At trial, the district court admitted evidence of Plumes' escape from federal custody at the LaGrande, Oregon jail on July 14, 1988. Plumes argues that this evidence was admitted improperly because it lacked probative value, its admission infringed on his right against self-incrimination, and it was admitted in violation of an agreement he had with the government. The district court's decision to admit evidence of flight is reviewed for an abuse of discretion. United States v. Ordonez, 722 F.2d 530, 542 (9th Cir. 1983), modified on other grounds, 737 F.2d 792 (9th Cir. 1984).

Plumes first challenges the probative value of the evidence. Evidence of flight is generally admissible as evidence of consciousness of guilt. United States v. Guerrero, 756 F.2d 1342, 1347 (9th Cir.), cert. denied, 469 U.S. 934 (1984). Nevertheless, " [f]light instructions are valid only if there is evidence sufficient to support a chain of unbroken inferences from the defendant's behavior to the defendant's guilt of the crime charged." United States v. Silverman, 861 F.2d 571 (9th Cir. 1988).

At the time Plumes escaped, he had been charged with the robberies, was in custody, and trial on the charges was imminent. We conclude that, under these circumstances, the necessary inferences may be drawn in this case. See Silverman, 861 F.2d at 581 (In determining whether inferences properly may be drawn, court considers whether the defendant knew the police suspected him of a particular crime); see also Guerrero, 756 F.2d at 1347 (Myers test satisfied where defendants escaped the day before they were to be arraigned); United States v. Hernandez-Miranda, 601 F.2d 1104, 1106-07 (9th Cir. 1979) (Flight instruction proper where defendant knew about charges against him, had been arrested, arraigned, pled not guilty, and fled a few days prior to his scheduled jury trial).¹ 

Plumes also contends that by admitting the evidence of his escape, the district court violated his rights under the Fifth Amendment by forcing him to choose between rebutting the evidence of flight, thereby waiving his Fifth Amendment right not to testify, or invoking that right and allowing the evidence to be introduced without rebuttal. This argument has no merit. This decision is faced by any defendant who is confronted with evidence that only he can rebut. Being confronted with this choice is a tactical, not a constitutional, matter.

Immediately prior to the beginning of the trial, Plumes entered into an agreement with the government whereby he withdrew his motion to dismiss Count Four of the indictment (carrying a firearm during the commission of a crime of violence, 18 U.S.C. § 924(c) (1)) in return for the government's pledge not to prosecute him for his escape. Plumes, citing United States v. Shapiro, 879 F.2d 468 (9th Cir. 1989), contends that the government violated this agreement by seeking to admit evidence of the escape. He is wrong. The government agreed only that it would not prosecute Plumes for the escape. Plumes could not reasonably extrapolate any additional protection from the language of the stipulation. It distorts the language of the agreement to say that it precluded the government from using evidence of the escape for any purpose whatsoever.

The district court did not abuse its discretion in admitting the evidence of Plumes' escape or in giving the jury the flight instruction.

In a pro se supplemental brief, Plumes alleges prosecutorial misconduct, ineffective assistance of counsel, lack of consent to the stipulation entered into with the government, improperly amended indictments, lack of jurisdiction, double jeopardy, and denial of a fair sentencing hearing. All of these allegations arise out of a single claim--that Count Four of the indictment should have been dismissed pursuant to Sec. 3161(b) of the Speedy Trial Act, 18 U.S.C. § 3161 et seq.² 

Plumes was arrested on March 25, 1988 and indicted on April 20, 1988, within the time prescribed in Sec. 3161(b). He was arraigned on three of the counts on April 21, 1988 and on the fourth count on October 25, 1988. The Speedy Trial Act and Fed. R. Crim. P. 10 are silent on when the arraignment is to be held. "It may come soon after the crime, immediately before trial, or at any time in between." 1 Wright, Federal Practice and Procedure 2d Sec. 161 (1982). As provided in Sec. 3161(c) (2), Plumes consented in writing to waive the 30-day period between his initial appearance and trial on Count Four. Thus, in each of these steps the parties complied with the statute.

In his brief, Plumes suggests that his consent to waive the post-arraignment period was not voluntary. There is nothing in the record to support this contention. At the time he signed the waiver, Plumes was represented by counsel. Moreover, the trial judge questioned Plumes to confirm that he was aware of his constitutional rights and that he had signed the waiver voluntarily. Finally, Plumes' counsel was aware of Count Four no later than May 1988, so Plumes was not prejudiced by having to defend the firearm charge without benefit of the 30-day period. The agreement between Plumes and the government did not violate the Speedy Trial Act.

AFFIRMED.