Unpublished Disposition, 843 F.2d 502 (9th Cir. 1988)

MEMORANDUM^* 

Stanley David Barr (appellant) appeals his conviction for aiding and abetting bank robbery in violation of 18 U.S.C. § 2113(a) and Sec. 2.

Appellant, a truck driver, met Charles Rose when he gave Rose a ride to California from Texas or New Mexico. Shortly after arriving in Tustin, California, they parked the truck in a shopping center. There was a Wells Fargo Bank in that shopping center. At approximately 11:30 a.m. of the same day they arrived in California, Rose robbed the bank. While Rose was robbing the bank, appellant was observed pacing up and down by his truck approximately a block away from the bank. Fleeing from the bank, Rose jumped into the back of the truck and appellant immediately closed the door to the truck and drove off.

Tustin police stopped the truck and placed appellant in a police car. The police opened the back of the truck and found Rose. As Rose exited the truck, appellant pretended he did not know Rose.

At trial Rose, who had entered into a plea agreement, testified about the whole scheme to rob the bank which had Rose robbing the bank and appellant driving the getaway truck. The jury returned a verdict of guilty.

Rose testified at trial that appellant threatened to kill him or have him killed if he testified at trial. When defense counsel asked if anyone was present when the threat was made or whether anyone else knew of the threat, Rose testified that he told a counselor at the Federal Correctional Institution at which he and appellant were incarcerated.

The government called George Piper, a correctional counselor at the FCI at Terminal Island. Piper corroborated Rose's testimony that Rose had reported appellant's threat.

Defense counsel failed to object to the Piper testimony. This court does not review evidentiary rulings, in the absence of a timely objection, unless admission of the evidence affected substantial rights of the accused. United States v. Rogers, 769 F.2d 1418, 1425 (9th Cir. 1985). Fed. R. Crim. P. 52(b). When a defendant fails to object to allegedly improper evidence at trial, the standard of review is plain error. Plain error is recognized only when exceptional circumstances require the court to act to avoid a miscarriage of justice. Plain error is a highly prejudicial error affecting substantial rights. United States v. Bustillo, 789 F.2d 1364, 1367 (9th Cir. 1986). Plain error in the district court's rulings occurs only if the evidence was inadmissible and only where its admission materially affected the outcome of the trial and defendant's right to a fair trial. United States v. Houser, 804 F.2d 565, 570 (9th Cir. 1986); United States v. Hamilton, 792 F.2d 837, 840 (9th Cir. 1986).

Appellant contends that the Piper testimony is inadmissible hearsay. The government contends that the testimony is not hearsay because it is a prior consistent statement as defined in Fed.R.Evid. 801(d) (1) (B).

Fed.R.Evid. 801(d) (1) (B) provides that " [a] statement is not hearsay if-- [t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement and the statement is ... consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive ..." It is apparent that the nature of defense counsel's cross-examination of Rose contained an implicit if not express charge of recent fabrication. Defense counsel also seems to have raised a question of improper motive relative to Rose's plea agreement. For both reasons defense counsel opened the door to the government's rebuttal of those allegations of recent fabrication and improper motive. It is apparent that the Piper testimony is prior consistent statement testimony and not inadmissible hearsay. Fed.R.Evid. 801(d) (1) (B).

In further mitigation of the Piper testimony is the fact that defense counsel had an opportunity to cross-examine Piper and did. Furthermore, in light of the overwhelming evidence against appellant it cannot be said that the Piper testimony materially affected the outcome of the trial or appellant's right to a fair trial. No plain error occurred. Houser, supra.

Appellant contends that during the examination of Rose the government used leading questions. The government's direct and redirect examination consisted of 26 pages of the reporter's transcript. Of that testimony appellant's allegation of leading questions dealt with Rose's criminal record, Rose's plea bargain, the written FBI report and other undisputed details.

It is well settled that the use of leading questions rest in the sound discretion of the trial court. Mitchell v. United States, 213 F.2d 951, 956 (9th Cir. 1954).

In Mitchell, the Court stated:

The object of examination is to get the facts. Whether direct or cross questions best serve that end depends upon circumstances. The trial judge is in a better position than is this Court to determine the precise point of which the asking of leading questions should be brought to a halt. He sees the witness and hears the testimony, and thus has a better opportunity to assess the true situation existing at any given posture of the case, than can we from the cold record. The discretion of an experienced trial judge in this, as in other respects, should not be lightly disregarded

Id.

The Ninth Circuit echoed the Mitchell decision when it held that some leading of witnesses may be proper subject always to the judicial discretion of the trial judge. Esco Corp. v. United States, 340 F.2d 1000, 1005 (9th Cir. 1965).

The Supreme Court has held that the "discretion of the trial court in permitting leading questions will not be reviewed unless clearly abused." Northern Pac. R. Co. v. Urlin, 158 U.S. 271, 273 (1895).

Judge Weinstein in his treatise on Evidence has recognized that " [a]n almost total unwillingness to reverse for infractions has been manifested by appellate courts.... The matter clearly falls within the area of control by the judge over the mode and order of interrogation and presentation and accordingly is phrased in words of suggestion rather than command." 3 Weinstein's Evidence (Bender 1987) (discussion of Fed.R.Evid. 611(c)).

This court defers to the judgment of the district court as there was no clear abuse of discretion in permitting the leading question in the areas in which they were asked.

Appellant contends that there were two instances of prosecutorial misconduct. The first instance concerned two questions asked on cross-examination by the prosecutor of appellant concerning the "paper waving" incident. Appellant alleges that asking these two questions was prosecutorial misconduct because the fact of the "paper waving" was not a fact in evidence brought out on direct examination. Appellant also contends that prosecutorial misconduct occurred when the prosecutor in her closing argument suggested that appellant had tried to intimidate Rose immediately after their arrest. The contested part of the prosecutor's summation concerned in particular purported conversations between appellant and Rose observed by the arresting officer and that officer's attempts to break up the conversations.

"Prosecutorial comments to which defendant objects are reviewed for 'harmless error', while the standard of review for comments which defendant failed to interpose an objection is 'plain error'. United States v. Endicott, 803 F.2d 506, 513 (9th Cir. 1986). See also United States v. Young, 470 U.S. 1, 13 n. 10 (1985); United States v. McKay, 771 F.2d 1207, 1212 (9th Cir. 1985). Reversal is justified only if it appears more probable than not that the alleged misconduct materially affected the fairness of the trial. United States v. Polizzi, 801 F.2d 1543, 1558 (9th Cir. 1986); McKay, id.

Defense counsel failed to object to either the offending cross-examination questions or to the offending portion of the government's closing argument. If defense counsel had objected, the government would have had an opportunity to demonstrate its good faith belief that the "paper waving" had occurred though it was not established to be a fact in evidence. As no objection was made, the plain error standard applies. Nothing in the record suggests that in these two questions, the government's acknowledgement of paper-waving materially affected or prejudiced the fairness of appellant's trial.

As to the government's closing argument it has been said that " [i]n closing argument, both defense attorneys and prosecution attorneys are allowed reasonably wide latitude." United States v. Birges, 723 F.2d 666, 671-72 (9th Cir.) cert. denied, 466 U.S. 943 (1984). The prosecutor's inference that intimidation by appellant may have occurred is a permissible inference "as long as the prosecutor does not 'misstate or exceed the evidence in any significant respect.' United States v. Marques, 600 F.2d 742, 749 (9th Cir.) cert. denied, 444 U.S. 858 (1979). Improprieties in counsel's argument to the jury do not constitute reversible error 'unless they are so gross as probably to prejudice the defendant and the prejudice has not been neutralized by the trial judge.' " Birges, 723 F.2d at 672. There is nothing in the record to suggest that the prosecutor misstated or exceeded the evidence in any significant respect. Nor are the inferences in the government's argument so gross as to suggest that appellant was prejudiced.

At trial Rose testified that appellant possessed and smoked marijuana, forged checks, cheated restaurants, bragged about robbing banks in the past, and that he was going to use the robbery money to finance drug sales.

Appellant contends that this testimony is other crime/other act evidence and as such is inadmissible because its highly prejudicial value outweighs its probative value.

Because defense counsel failed to object at trial the plain error standard applies here also. Rogers, supra; Bustillo, supra; Houser, supra.

The government contends, and correctly so, that this testimony is admissible to prove motive, opportunity, intent, preparation and plan under the exceptions carved out in Fed.R.Evid. 404(b).

Appellant correctly points out that a timely instruction from the trial judge usually cures the prejudicial impact of evidence. United States v. Berry, 627 F.2d 193, 198 (9th Cir. 1980). However, the failure to request an instruction or the failure to object to the absence of an instruction is deemed to be a waiver. United States v. Jenkins, 785 F.2d 1387, 1395-96 (9th Cir.) cert. denied, 107 S. Ct. 287 (1986).

Furthermore under the plain error standards discussed in the Piper testimony analysis, it is clear that the judge's failure to give a curative instruction does not rise to the level of plain error.

Appellant next complains of ineffective assistance of counsel at the trial level. In particular he complains that his trial counsel failed to move to suppress statements made by appellant upon arrest; failed to make sufficient objections to leading, irrelevant, compound, repeated and argumentative questions as well as other act testimony and questions asked for which there was no basis in the record. Appellant further contends that defense counsel's summation was inadequate. Finally, appellant states he received ineffective assistance of counsel at the hearing for his motion for new trial.

The government is correct when it points out that "the customary procedure in this Circuit for challenging the effectiveness of counsel in a federal criminal trial is by collateral attack on the conviction under 28 U.S.C. § 2255 ... and this Court has been chary of analyzing insufficiency of counsel claims on direct appeal." United States v. Schaflander, 743 F.2d 714, 717 (9th Cir. 1984), cert. denied, 470 U.S. 1058 (1984). This is the preferred procedure because "such a claim cannot be advanced without the development of facts outside the original record." United States v. Birges, 723 F.2d 666, 670, (9th Cir.), cert. denied, 466 U.S. 943 (1984). Were this court to review appellant's ineffective assistance of counsel claim it

would become engaged in the perilous process of second-guessing.... Reversals would be ordered unnecessarily in cases where there were, in fact, good reasons for the aspect of counsel's representation under attack. Indeed, such reasons might lead a new defense counsel on retrial to do exactly what the original counsel did, making manifest the waste of judicial resources caused by reversal on an incomplete record.

Birges, id.

Though we need not reach the issue of ineffective assistance of counsel because of the availability of the section 2255 remedy, it does not appear appellant would prevail on this claim anyway. Nothing in the record suggests that defense counsel's conduct falls outside the wide range of reasonable professional assistance, nor assuming arguendo defense counsel's conduct and purported omissions were unprofessional is there a reasonable probability the outcome of the case would have been any different. Strickland v. Washington, 466 U.S. 668 (1984).

Following his conviction appellant brought a motion for new trial. At a hearing on that motion two fellow inmates of Rose testified that Rose had told them he had lied on the witness stand to get a more lenient sentence. At the conclusion of the hearing the district court ruled that both of the inmate witnesses lacked credibility and the court denied the motion. Appellant contends that the testimony of these two inmates and of Rose raises serious credibility issues which if the jury had before it might have resulted in acquittal. He also contends that the district court abused its discretion in denying the motion.

The burden of justifying a motion for new trial rests with the defendant, United States v. Geders, 625 F.2d 31, 33 (5th Cir. 1980), and the decision to grant or deny the motion falls within a court's sound discretion and will not be reversed absent an abuse of discretion. United States v. Kenny, 645 F.2d 1323, 1345 (9th Cir. 1981).

Where the credibility of newly-discovered evidence is at issue the role of the trial judge is that of fact-finder. United States v. Rujese, 371 F.2d 120, 125 (3rd Cir. 1967). The district court's findings of fact should not be reversed unless clearly erroneous. United States v. McConney, 728 F.2d 1195, 1200 (9th Cir. 1984).

It is well settled in the Ninth Circuit that a defendant seeking a new trial on the basis of newly discovered evidence must satisfy five requirements:

(1) It must appear from the motion that the evidence relied on is, in fact, newly discovered, i.e., discovered after the trial; (2) The motion must allege facts from which the court may infer diligence on the part of the movant; (3) The evidence relied on must not be merely cumulative or impeaching; (4) Must be material to the issues involved; and (5) Must be such as, on a new trial, would probably produce an acquittal.

United States v. Kransy, 607 F.2d 840, 843 (9th Cir. 1979). Motions for new trials are not favored by the courts and must be viewed with great caution. Bently v. United States, 701 F.2d 897, 898 (11th Cir. 1983); United States v. Riley, 544 F.2d 237, 240 (5th Cir. 1976), cert. denied, 430 U.S. 932 (1977).

The district court was in the best position to evaluate the testimony of the two inmate witnesses, and the court's conclusion that they were not credible should not be reviewed unless clearly erroneous. While appellant claims that the testimony of the inmate witnesses places in issue the veracity and credibility of Rose, there was sufficient evidence to support the jury's guilty verdict.

We affirm the judgment of conviction.

AFFIRMED.