Unpublished Disposition, 925 F.2d 1471 (9th Cir. 1990)

No. 89-30120.

United States Court of Appeals, Ninth Circuit.

Before CANBY and TROTT, Circuit Judges, and LEGGE, District Judge^* .

MEMORANDUM^** 

This is an appeal by defendant Tracy William Gann from a conviction of bank robbery. Appellant alleges several errors during pretrial proceedings, trial and sentencing. This court discusses each below and affirms.

The first charge of error is that the district court did not give a correct instruction on appellant's defense of alibi. Defendant timely filed a notice of his alibi defense. Several witnesses testified that he may have been at work at the time of the offense, and that he drove a car different from the one used in the robbery.

The district court instructed the jury on the alibi defense by use of Instruction 6.01 from the Manual of Model Jury Instructions for the Ninth Circuit (1985 ed.). Defendant contends that this instruction was incomplete, relying upon the decision of this court in United States v. Hoke, 610 F.2d 678 (9th Cir. 1980). Under Hoke, an alibi instruction should tell the jury that the government has the burden of disproving the alibi defense beyond a reasonable doubt. 610 F.2d at 679. The 1989 edition of the Manual has modified Instruction 6.01 to include that language. The instruction which the district court gave, from the 1985 edition, did not include that language.

The first question is whether defendant submitted an instruction with the requested language in a timely manner. If a defendant does not submit his proposed instruction in a timely manner, he can not complain about error in the failure to give the instruction. Lewis v. United States, 373 F.2d 576, 579 (9th Cir. 1964). The resolution of this question requires an analysis of the trial record:

The day before the trial started, defendant submitted his proposed jury instructions, including an instruction on alibi using 6.01 as it read in the 1985 edition. CT 35. This is the instruction which the district court ultimately gave.

The trial began on January 10, 1989. Testimony was taken on January 10 and ended January 11. RT 424. Final arguments were given immediately after the testimony ended. RT 424. During his opening final argument, the prosecutor argued about the defense of alibi. RT 444-46. Defendant's counsel also argued the alibi defense. RT 460-63. And the prosecutor's closing argument also mentioned the defense. RT 484-86. The only reference in the arguments to the burden of proof on the defense was when the prosecutor argued: "The defendant has not and in fact cannot establish this so-called alibi defense in this case." RT 446.

There is no indication in the record that the trial judge met with the attorneys after the testimony ended, and before oral argument began, to discuss what instructions would be given. Such a meeting may have been held, but there is no reference to it in the record. It is a better practice for the trial judge to meet with the attorneys and discuss the intended jury instructions before the attorneys argue. See Fed. R. Crim. P. 30 ("The court shall inform counsel of its proposed action upon the requests prior to their arguments to the jury.") However, the absence of a pre-argument meeting resulted in no prejudice to defendant here. The reason is that prior to the final arguments, defendant had submitted his alibi instruction only in the form of 6.01 which the trial court ultimately gave. Defendant did not submit an instruction requesting the additional language on the burden of proof of the alibi defense until after the oral arguments.

The trial judge met with the attorneys the next morning, January 12, after the arguments and before the jury was instructed. This meeting included a discussion of the jury instructions. Apparently the discussion was not transcribed, but there is a reference to it in the record. RT 500.

There is no record of when defendant actually submitted to the trial judge his request for the expanded version of 6.01. The government asserts that the supplemental instruction was not proposed until after the judge had orally instructed the jury. Defendant in his reply brief states that he raised the Hoke issue after the jury was orally instructed, and contends only that his supplemental request was timely because it was made before the jury retired to make its decision. Reply brief, pp. 3, 4. We accept, therefore, the government's view of the sequence of events.

The record is certainly not inconsistent with our conclusion. It indicates that the supplemental instruction was requested sometime on January 12, but the record does not indicate exactly when. The reporter's transcript makes no reference to the time of submission. And the clerk's transcript indicates only that this additional instruction (defendant's No. 9) was filed on January 12. CT 39. Part of the January 12 conference between the judge and the attorneys was transcribed, but the transcript contains no reference to any request for supplemental instructions by defendant. RT 496-99. The trial judge then gave the jury instructions, including the alibi instruction in the form of 6.01 first requested by defendant. RT 508.

After the court gave the instructions verbally, but before they were delivered to the jury in written form, defendant raised objections to some of the instructions, including the alibi instruction. RT 513-14, 517-18. This is the first transcript reference to defendant's request for an alibi instruction which included the burden of proof language. The court declined to reinstruct the jury. RT 518-19.

This court concludes from the record that the submission of the supplemental alibi instruction was not timely. Rule 30 of the Federal Rules of Criminal Procedure provides that proposed jury instructions should be filed in writing at the latest by "the close of evidence." If "an instruction is desired it should be prepared and requested at conclusion of the evidence and prior to the giving of the instructions, and before the issues go to the jury." Smith v. United States, 390 F.2d 401, 403 (9th Cir. 1968) (citing Lewis v. United States, 334 F.2d 589 (9th Cir. 1964)). There are two purposes for that requirement. One is to enable the trial judge to consider the parties' proposed instructions in preparing her set of charges to the jury. The other is to enable counsel to frame their final arguments in conformity with the instructions that will be given. United States v. Tourine, 428 F.2d 865, 869 (2d Cir.), cert. denied, 400 U.S. 1020 (1970). Neither of the two purposes was served by the defendant's request for a supplemental alibi instruction in this case.

This court therefore concludes that the submission of the supplemental instruction was not timely. The district judge, in her discretion, could have accepted and acted upon the untimely request if she wished to do so. See, e.g., People of Territory of Guam v. Rosario, 625 F.2d 811 (9th Cir. 1979), but it was not an abuse of discretion not to do so. And an alibi defense is not one where the court, of its own volition, must give certain instructions. Lewis v. United States, 373 F.2d at 579. It is true that regardless of his belated request for his own instruction, defendant's objection to the instruction that was given was timely under Rule 30 because it was made before the jury retired. But that objection was to the instruction that had originally been requested by defendant, and had been given orally to the jury. At the time the jury was orally instructed, any error in the alibi instruction was invited by defendant. This court therefore declines to consider defendant's claim of error in the language of the alibi instruction, or whether any error was prejudicial.

Defendant argues that the trial court committed reversible error by refusing to instruct the jury on the offense of bank larceny, 18 U.S.C. § 2113(b), as a lesser offense necessarily included within bank robbery, 18 U.S.C. § 2113(a), the offense of which defendant was charged and convicted. Whether one offense is "necessarily included" in another is reviewed de novo. United States v. Gregory, 891 F.2d 732, 734 (9th Cir. 1989); United States v. Brown, 761 F.2d 1272, 1278 (9th Cir. 1985).

This circuit has specifically addressed the question of whether bank larceny is necessarily included in the offense of bank robbery. Gregory, 891 F.2d at 734. That case decided that bank larceny was not necessarily included, because bank larceny contains a specific intent element which need not be proved in bank robbery. Id. This court rejects defendant's argument that Gregory was wrongly decided.

The government offered evidence that defendant drove a stolen van in committing the robbery; that at the time of his arrest five days later, he was driving that van; and that the van contained two realistic-looking plastic guns that were similar in appearance to the gun used in the robbery. The government also offered testimony that other realistic plastic guns were found in the apartment where defendant lived. Over defendant's objections, the district court admitted that evidence. Defendant contends that the evidence was irrelevant, improper character evidence, and unduly prejudicial.

The admission of evidence of other crimes, wrongs, or acts pursuant to Federal Rule of Evidence 404(b) is reviewed under an abuse of discretion standard. United States v. Conners, 825 F.2d 1384, 1390 (9th Cir. 1987). A trial court's balancing of the probative value of evidence against its prejudicial harm under Federal Rule of Evidence 403 is also reviewed for abuse of discretion. Id.; United States v. Rubio, 727 F.2d 786, 798 (9th Cir. 1984).

The district judge did not abuse her discretion in admitting evidence that the van was stolen. Rule 404(b) expressly allows evidence of other acts to prove preparation or plan. See United States v. Leftwich, 461 F.2d 586, 589 (3d Cir. 1972). And this "other acts" evidence, that defendant was driving a stolen van, was not inadmissible solely because defendant's arrest was five days after the charged crime. United States v. Hodges, 770 F.2d 1475, 1479 (9th Cir. 1985); United States v. Herrera-Medina, 609 F.2d 376, 379 (9th Cir. 1979); United States v. Multi-Management, Inc., 743 F.2d 1359, 1364 (9th Cir. 1984).

Evidence of defendant's access to the van was also relevant to show opportunity, United States v. Robinson, 560 F.2d 507, 513 (2d Cir. 1977) (en banc), and to rebut defendant's alibi defense. United States v. Gering, 716 F.2d 615, 621 (9th Cir. 1983). And the district judge did not abuse her discretion in determining that the probative value of the evidence outweighed the danger of unfair prejudice under Rule 403.

Defendant also challenges the admissibility of the evidence about the toy guns found in the van and in defendant's apartment. The argument is that the evidence should have been excluded under Rule 404(b) as improper character evidence. However, possession of toy guns does not relate to the character of the accused. The issue is simply one of relevance. Evidence that defendant possessed or had access to a gun, toy or not, which appeared similar to the one that the robber showed to the bank teller was relevant.

Defendant also asserts that it was error for the district court not to give a cautionary instruction on the limited use of Rule 404(b) evidence. However, defendant did not ask for a limiting instruction, and the failure of a trial court to give such an instruction sua sponte is not reversible error. United States v. Multi-Management, Inc., 743 F.2d at 1364.IV.

Defendant argues that the bank tellers' identification of him violated due process, because the identifications were based on an unduly suggestive photo display. Constitutionality of pretrial identification procedures is reviewed de novo. United States v. Bagley, 772 F.2d 482, 492 (9th Cir. 1985). Those procedures must not be so suggestive as to taint subsequent in-court identification and therefore deny a defendant due process of law. Id. The test is whether the identification procedures were so impermissibly suggestive as to create a substantial likelihood of misidentification. Id.; Manson v. Brathwaite, 432 U.S. 98, 116 (1977).

The procedures in defendant's identification were the following: Defendant's photo was included in an array of six photographs. All information on the photos was covered with tape. The witnesses were separated when they viewed the photos and did not discuss the array with each other before viewing it. They were both told that they were under no obligation to choose anyone, and that they were not to assume that the robber was included in the array. Both tellers identified defendant from the array. Although those witnesses made statements elsewhere in the record which might indicate a lesser degree of certainty, that was only a matter of the weight of the evidence.

The tellers' identifications of defendant were based upon the fact that at the time of the robbery they had close-up views of defendant, under excellent lighting conditions, for about three minutes. They paid close attention to the robber, and gave consistent and reasonably accurate descriptions of defendant's overall physique. Any discrepancies or uncertainties about the details of his personal appearance at the time were not sufficient to taint or corrupt the identification process.

Before trial, defendant requested that the government produce the identification manual of the Federal Bureau of Investigation, which apparently sets forth procedures for witnesses making identifications. The district court correctly denied the request. The issue was not what the manual may or may not require, but whether the procedures that were actually used denied defendant due process. The manual is not material which the government is required to provide under Rule 16 of the Federal Rules of Criminal Procedure. And the manual would not contain any exculpatory evidence under Brady v. Maryland, 373 U.S. 83 (1963).

In a single sentence, defendant asserts that the district court erred in refusing to give his requested jury instructions Nos. 4-8 regarding identification. RT 515-17. The court instead gave two instructions from the Manual, 3.08 on the credibility of witnesses and 4.13 on eyewitness identification. RT 502-04. Those jury instructions fairly and adequately covered the issues presented, and there was no abuse of discretion in declining to give defendant's forms of instruction. United States v. Echeverry, 759 F.2d 1451, 1455 (9th Cir. 1985).

Defendant received a 240 month sentence as a career offender, under Sec. 4B1.1 of the United States Sentencing Commission Guidelines Manual (the guidelines). Defendant claims that this was error in two respects.

First, defendant argues that Mistretta v. United States, 109 S. Ct. 647 (1989), upholding the constitutionality of the guidelines, should not apply to his case because Ninth Circuit law was to the contrary during his proceedings. See Gubiensio-Ortiz v. Kanahele, 857 F.2d 1245 (9th Cir. 1988). This argument has already been resolved by United States v. Kane, 876 F.2d 734, 735-36 (9th Cir. 1989), holding that Mistretta was retroactive and that all crimes occurring after November 1, 1987 are subject to the guidelines, regardless of Gubiensio-Ortiz.

The second contention is that this was an unarmed bank robbery, and not an armed robbery, because defendant displayed a toy gun and not a real one. Defendant contends that it was therefore not a "crime of violence" under guidelines Sec. 4B1.1. This issue has also been resolved against defendant in United States v. Selfa, No. 89-10309, slip. op. 6077 (9th Cir. June 14, 1990). The use of a toy gun in the crime of robbery is subject to the career offender penalties of Sec. 4B1.1. The district court was correct in imposing a sentence under that guideline.

Defendant contends that the delay in starting his trial denied him the speedy trial guaranteed by the Sixth Amendment. The relevant time period is the interval between the time of accusation, in this case the indictment, and the trial. United States v. Valentine, 783 F.2d 1413, 1417 (9th Cir. 1986). Defendant was indicted on July 27, 1988, and the trial commenced on January 10, 1989, an interval of about six months. A sixth month delay is a "borderline case" sufficient to trigger an inquiry into the other factors defined in Valentine. Id.; U.S. v. Simmons, 536 F.2d 827, 831 (9th Cir.), cert. denied, 429 U.S. 854 (1976).

The reason for delay is uncontested. Defendant was being prosecuted on state felony charges, on which he was not sentenced until October 1988.

Upon the demand of an incarcerated defendant when he is charged by another sovereign, the charging sovereign is required to make a diligent good faith effort to obtain the accused for trial. Smith v. Hooey, 393 U.S. 374 (1969); U.S. v. Hooker, 607 F.2d 286, 288 (9th Cir. 1979), cert. denied, 445 U.S. 905 (1980). Defendant became aware that there was a federal arrest warrant against him on July 5, 1988. However, he made no demand upon the federal authorities. His court-appointed state counsel expressed concerns about the pending federal charges and made inquiries with the federal public defender about representing defendant in federal court. He was told that defendant would have to await arraignment before he could be appointed counsel. The U.S. Attorney filed a motion for a writ of habeas corpus ad prosequendum within two or three weeks of defendant's sentencing in state court.

Delays occurring for neutral reasons such as calendaring and litigation conflicts are weighed less heavily than delays intended to gain a tactical advantage. Barker v. Wingo, 407 U.S. 514, 531 (1972); U.S. v. Loud Hawk, 474 U.S. 302 (1986). Here the delay is accountable solely by the neutral factor of defendant's state proceedings. There is no evidence that the government delayed prosecution to achieve any tactical advantage.

The speedy trial clause is designed to protect the defendant from four evils: (1) oppressive pretrial incarceration; (2) protracted anxiety and concern; and (3) impairment of trial defense. Valentine, 783 F.2d at 1417-18; Barker v. Wingo, 407 U.S. at 532. Of these, the most serious is the last, Barker v. Wingo, 407 U.S. at 532.

The first two concerns are only minimally significant here. Defendant was incarcerated by the state on independent grounds. While knowledge of the pending federal charge undoubtedly created anxiety, this was not unduly protracted given the reasons for the delay.

Defendant contends that the delay was prejudicial because it impaired his ability to present his alibi defense at trial. He claims that the passage of time affected his co-workers' ability to recall the events on the day of the bank robbery. In Valentine, the court noted "that some destruction of evidence or erosion is inevitable over a six month period." 783 F.2d at 1418. However, the burden is on defendant to demonstrate that his ability to defend himself was impaired in a "significant manner." Id. Defendant argues that the government attacked his alibi witnesses on the basis of their inability to recall the events of the day of the robbery. However, the portions of the prosecutor's closing argument cited by defendant demonstrates that the prosecutor attempted to discredit defendant's witnesses for bias, not fading memories. RT 484.

Defendant's right to a speedy trail was not violated and the district court's denial of his motion to dismiss was not error.

Defendant asserts that his Sixth Amendment right to counsel was violated because there was a four-month delay between the indictment on July 27, 1988, and his arraignment and appointment of counsel on November 17, 1988.

The right to counsel attaches "at or after the initiation of adversary judicial criminal proceedings--whether by way of formal charge, preliminary hearing, indictment, information, or arraignment." Kirby v. Illinois, 406 U.S. 682, 689 (1972); U.S. v. Pace, 833 F.2d 1307, 1312 (9th Cir. 1987), cert. denied, 486 U.S. 1011 (1988). Defendant is correct that his right to counsel attached on July 27, 1988.

However, "the right to counsel exists to protect the accused during trial-type confrontations with the prosecutor...." U.S. v. Gouveia, 467 U.S. 180, 190 (1984). Here, trial-type confrontations did not occur until after counsel was appointed on November 17, 1988. Defendant subsequently had attorney representation in all proceedings. There was no denial of the right to counsel.

The judgment of the district court is AFFIRMED.