Unpublished Disposition, 940 F.2d 670 (9th Cir. 1991)

No. 89-50405.

United States Court of Appeals, Ninth Circuit.

Before CANBY and RYMER, Circuit Judges, and LEVI,^*  District Judge.

MEMORANDUM^** 

Scheets argues that his prior convictions were improperly admitted under Rule 404(b) of the Federal Rules of Evidence. Rule 404(b) states that " [e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Fed.R.Evid. 404(b). The admission of evidence of other crimes pursuant to Rule 404(b) is reviewed for an abuse of discretion. United States v. Conners, 825 F.2d 1384, 1390 (9th Cir. 1987).

The reasons the district court stated for admitting evidence of Scheets' other crimes was to prove intent, identity, and modus operandi. However, we will uphold the admission of the Rule 404(b) evidence if it is admissible on any permissible ground, see United States v. McKoy, 771 F.2d 1207, 1214 (9th Cir. 1985), and if it is relevant to an actual issue in the case. E.g., United States v. Mehrmanesh, 689 F.2d 822, 830 (9th Cir. 1982).

At trial, the only contested factual issue was the identity of the robber. Over objection, the government was permitted to prove that on February 18th Scheets attempted to rob Newport City Employee's Credit Union and on February 12th Scheets robbed CBC Federal Credit Union. Witnesses testified that both times Scheets limped and used a silver cane, and that he handed notes to the tellers demanding money. The facts of these crimes varies only slightly from the testimony concerning the robbery at issue in this case: here the robber orally demanded money and used a cane that may have been wooden. The similarities between this robbery and the other two crimes, however, is substantial. All the robberies testified to at trial occurred in Southern California within a two week time span. In all cases the robber limped and used a cane. The evidence was properly admitted under 404(b) to prove identity. See United States v. Johnson, 820 F.2d 1065 (9th Cir. 1987).¹ 

Scheets next contends that the district court failed to weigh the probative value of the evidence against its unfair prejudice, as required by Rule 403, and that the district court should have found the evidence barred by Rule 403.²  In United States v. Johnson, 820 F.2d 1065, 1069 (9th Cir. 1987), this court stated "that as long as it appeared from the record that the trial judge performed the balancing required by Rule 403, we would not overturn the court's decision." In the case before us, the record indicates that the trial judge did the necessary weighing. The trial court did not abuse its discretion in concluding that the probative value of the evidence on the crucial issue of identity outweighed any possible unfair prejudicial effect. See id. at 1069-70. The admission of the 404(b) evidence was not prohibited by Rule 403.

II. Jury Instruction on Lesser-Included Offense

Scheets next contends that the district court erred in declining to give a requested instruction on the lesser-included offense of bank larceny. However, in United States v. Gregory, 891 F.2d 732 (9th Cir. 1989), we held that bank robbery does not necessarily include bank larceny as a lesser offense. Gregory, like Scheets, was charged with bank robbery under 18 U.S.C. § 2113(a) and claimed that the jury should have been instructed on the lesser-included offense of bank larceny as defined by 18 U.S.C. § 2113(b). We rejected this argument, pointing out that bank larceny includes a specific intent element that is not an element of bank robbery.

The district court correctly declined to give the proffered instruction.

Finally, Scheets contends that the district court erred in failing to grant a mistrial because of prosecutorial misconduct during closing argument. We review the district court's decision for abuse of discretion. United States v. Makhlouta, 790 F.2d 1400, 1403 (9th Cir. 1986).

We recognize that counsel in closing argument seemed to stray from the limited purpose for which the prior convictions were admitted and to urge them as evidence of intimidation. Even after the trial judge sustained an objection to this line of argument, the prosecutor unaccountably repeated it. The judge did again indicate that the argument was improper, however, and the jury was properly instructed on the use of the other convictions. The prejudicial effect of the prosecutor's statements was neutralized by the court's limiting instruction. See United States v. Alvarado, 838 F.2d 311, 317 (9th Cir. 1988) (prompt curative instructions may neutralize impropriety in closing argument). We find no reversible error.

AFFIRMED.