Unpublished Disposition, 922 F.2d 845 (9th Cir. 1991)

MEMORANDUM^** 

David Lee Robinson appeals his conviction on nine counts of bank robbery, 18 U.S.C. § 2113(a). He contends, first, that the district court erred in refusing to allow him to present an expert witness on gang activity to support his duress defense, and secondly, that the court erred by permitting evidence of his drug use and previous robbery convictions. Both rulings are affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

Defendant Robinson was arrested and charged with nine (originally fifteen) counts of unarmed robbery of banks and savings and loans. His defense was that he had been kidnapped and held hostage by members of a gang known as the "Rolling 60's" who forced him to commit the robberies. However, his request to present an expert witness on gang practices was denied on the grounds that the testimony would not be helpful to the jury, and that it would impermissibly bolster Robinson's credibility.

For its part, the government introduced evidence of two prior robbery convictions to impeach Robinson's credibility under Fed.R.Evid. 609. Evidence of two older convictions was excluded on the grounds that their probative effect did not "substantially outweigh" their prejudicial effect as required by Rule 609(b).

In addition, all evidence of Robinson's drug addiction was initially excluded, based on this Circuit's holding that motive is not an element of robbery and therefore such evidence was not relevant. This ruling was later reversed, and the evidence allowed in for the limited purpose of rebutting the kidnapping story.

DISCUSSION

Evidentiary rulings by a trial judge are reviewed for abuse of discretion, and will not be reversed unless the judge's error more likely than not affected the verdict. United States v. Emmert, 829 F.2d 805, 808 (9th Cir. 1987). A "trial court has broad discretion to admit or exclude expert testimony", United States v. Aguon, 851 F.2d 1158, 1171 (9th Cir. 1988), and its decisions will be upheld unless "manifestly erroneous." United States v. Castro, 887 F.2d 988, 1000 (9th Cir. 1989); United States v. Beltran-Rios, 878 F.2d 1208, 1210 (9th Cir. 1989).

Fed.R.Evid. 702 governs the admissibility of expert testimony:

If ... specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert ... may testify thereto in the form of an opinion or otherwise.

Robinson contends that the jury could not be expected to understand and credit his kidnapping tale, which he admits in his brief "must have seemed, at the least, a bizarre story," without the aid of an expert on gangs. His proposed expert, a Los Angeles probation officer, would have testified that the Rolling 60's gang was highly violent and money-oriented, that it allowed non-members to sell drugs in its territory in return for a percentage of the profits, and that the three people who allegedly kidnapped Mr. Robinson were in fact gang members. This information, he contends, "would have corroborated Mr. Robinson's testimony to the extent that the jury could see that such events actually take place," and would "have helped the jury better assess Mr. Robinson's credibility."

We have held that expert testimony cannot be offered to buttress credibility. United States v. Komisauruk, 885 F.2d 490, 494 (9th Cir. 1989) (citing cases); United States v. Brodie, 858 F.2d 492, 496 (9th Cir. 1988). While the testimony might have educated the jury about gang practices, it bore no direct relevance to whether this particular gang actually kidnapped Mr. Robinson and forced him to commit bank robberies. The fact that they existed might just as well allow the jury to infer that Mr. Robinson joined them of his own free will.

The two cases cited by Robinson do not mandate a different conclusion. In United States v. Amaral, 488 F.2d 1148, 1152 (9th Cir. 1973), we affirmed the trial court's exclusion of expert testimony on the effect of stress on perception, holding that, as here, the jury was well-equipped to weigh other witness's testimony without expert assistance. Finally, as he did before the trial court, Robinson seeks to analogize the proffered gang information to the expert testimony on drug-dealing practices allowed in United States v. Kinsey, 843 F.2d 383 (9th Cir. 1988) and United States v. Rollins, 862 F.2d 1282 (7th Cir. 1988). However, the trial judge rejected this argument on the basis that drug-dealing transactions and the value of drugs sold may be proper subjects for expert testimony, but the gang activity in this case was not.¹  Since this reasoning is not "manifestly erroneous," Kinsey at 388, we must affirm.

II. Admission of Drug Use and Prior Convictions

District court judges are given wide latitude to balance the probative value of evidence against its prejudicial effect under Fed.R.Evid. 403, 404(b) and 609. United States v. Kinslow, 860 F.2d 963, 968 (9th Cir. 1988). Such decisions are reviewable only for abuse of the trial court's "sound discretion." United States v. Gilley, 836 F.2d 1206, 1213 (9th Cir. 1988); United States v. Kessi, 868 F.2d 1097, 1107 (9th Cir. 1989).

The District Court initially denied the government's motion to introduce evidence of Mr. Robinson's drug use in its case-in-chief as evidence of motive under Rule 404(b), then changed its ruling after it allowed the duress defense and ordered that the drug evidence would be admissible as rebuttal. Judge Real's reasoning seemed to be both that Robinson's drug dealing might have been the reason for the gang's allegedly kidnapping him, and that evidence of motive is admissible to rebut a claim of duress in a robbery case.

Robinson is correct that Rule 404(b) evidence, even if relevant and offered for a permissible purpose, must be excluded if more prejudicial than probative under Rule 403. See, e.g. United States v. Hodges, 770 F.2d 1475, 1479 (9th Cir. 1985); United States v. Aims Back, 588 F.2d 1287 (9th Cir. 1979). He argues that evidence of drug use is inherently prejudicial, and has no relevance to whether he was actually kidnapped by the gang, since drug addicts are not immune to duress and may in fact be more vulnerable.

The government counters, correctly, that evidence of drug use has previously been admitted for the purpose of showing motive to rob a bank, citing United States v. Saniti, 604 F.2d 603, 604 (9th Cir.). cert. denied, 444 U.S. 969 (1979) and United States v. Parker, 549 F.2d 1217, 1222 (9th Cir.), cert. denied, 430 U.S. 971 (1977). It also cites two cases in which evidence of other illicit activity was admitted to rebut claims that each defendant had robbed banks only under duress: United States v. Hearst, 563 F.2d 1331, 1335-8 (9th Cir. 1977) (participation in prior theft with same gang admissible for willingness), reconsideration denied, 435 F. Supp. 29 (N.D. Cal.), reh'g denied, 573 F.2d 579 (9th Cir. 1978), cert. denied, 435 U.S. 1000 (1978); and U.S. v. Hunter, 672 F.2d 815, 817 (10th Cir. 1982) (prior uncharged bank robbery admissible).

Finally, the government argues that the drug evidence satisfies the five-part test established in United States v. Ross, 886 F.2d 264, 267 (9th Cir. 1989), for admission of other acts under Rule 404(b). The relevant elements of the test require that the prior act "must be used to prove a material issue; and (5) the probative value must outweigh the prejudice." Robinson's challenge to each of these elements must fail. As held below, motive is not a material issue for robbery and therefore is irrelevant to the prosecution's case-in chief. However, allowing the government to prove that Robinson had an expensive cocaine addiction is permissible where the government bears the burden of rebutting duress. See United States v. Bowman, 720 F.2d 1103, 1104-05 (9th Cir. 1983) (bad act evidence admissible to rebut self-defense by showing motive of revenge); United States v. Bradshaw, 690 F.2d 704, 708-09 (9th Cir. 1982), cert. denied, 463 U.S. 1210 (1983).

As for prejudice,

While such evidence may present a danger of unfair prejudice to the defendant, that danger must substantially outweigh the probative value of the evidence before the court may properly exclude it. Fed.R.Evid. 403. As this court stated in United States v. Mahler, 452 F.2d 547 (9th Cir. 1971), cert. denied, 405 U.S. 1069 (1972), "evidence relevant to a defendant's motive is not rendered inadmissible because it is of a highly prejudicial nature.... the best evidence often is." Id. at 548.

Parker, 549 F.2d at 1222. In addition, the mere fact that a trial judge has not explicitly stated his balancing process on the record, where the issue of prejudice was fully briefed and argued in motions in limine and orally, does not mandate reversal. We may presume that the trial judge fully considered defendant's arguments and rejected them in his broad discretion. Kinslow, 860 F.2d at 968 (citing United States v. Sangrey, 586 F.2d 1312, 1315 (9th Cir. 1978)).

Finally, Robinson contends that the trial court improperly allowed evidence of Robinson's prior robbery convictions to impeach his credibility under Rule 609(a) (2), which requires no balancing and allows for no discretion. United States v. Field, 625 F.2d 862, 871 (9th Cir. 1980). In Kinslow, we held that "armed robbery is a crime that involves 'dishonesty' and is thus always relevant to the question of a defendant's credibility" under 609(a) (2). 860 F.2d at 968 (citing United States v. Oaxaca, 569 F.2d 518, 527 (9th Cir.), cert. denied, 439 U.S. 926 (1978)).²  We decline Robinson's invitation to overrule Kinslow, and find that it amply authorizes the decision of the trial judge.

In the alternative, Robinson argues that Rule 609(a) (1) would require the trial court to perform a balancing test before admitting the evidence, and that the similarity of the convictions to the crime charged would make them uniquely prejudicial under such a test. See United States v. Bagley, 772 F.2d 482, 487-88 (9th Cir.), cert. denied 475 U.S. 1023 (1985); United States v. Cook, 608 F.2d 1175, 1185 (9th Cir. 1979) (establishing five-factor balancing test which includes similarity), cert. denied, 444 U.S. 1034 (1980).

However, this identical argument was considered and rejected in United States v. Browne, 829 F.2d 760, 762-63 (9th Cir. 1987), where we affirmed the admission of prior bank robbery convictions in a trial for bank robbery. See also United States v. Givens, 767 F.2d 574, 579 (9th Cir.) (same), cert. denied, 474 U.S. 973 (1985); United States v. Cook, 608 F.2d 1175 (9th Cir. 1979) (same), cert. denied, 444 U.S. 1034 (1980); United States v. Oaxaca, 569 F.2d 518, 527 (9th Cir.) (same), cert. denied, 439 U.S. 926 (1978). Although the court here did not conduct a balancing test under Rule 609(a) (1), it was not necessary and, in any case, would have produced the identical result. The two prior convictions were admissible under either section of Rule 609(a).

CONCLUSION

The trial court acted well within its broad discretion to exclude the expert witness and permit evidence of Robinson's drug problem and prior bank robbery convictions. The judgment is AFFIRMED.