Unpublished Disposition, 851 F.2d 361 (9th Cir. 1988)

MEMORANDUM^* 

Toney was convicted following a jury trial for using a dangerous weapon to rob a federally insured savings and loan association, in violation of 18 U.S.C. § 2113(a) and (d) (1982 & Supp. IV 1986). On appeal, Toney asserts that the district court erred in denying his motion for acquittal because the evidence was insufficient.

In reviewing the sufficiency of the evidence, we apply the same test as the trial court. The Supreme Court has explained this test: " [T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original).

Upon review, we find that the evidence was sufficient to support a conviction. The jury was able to compare the depictions of the robber in the surveillance photographs with Toney and with photographs stipulated to be of Toney.

Also, trial testimony amply supports Toney's conviction. Teddy Hassan, a friend of Toney, entered the bank shortly before the robbery and received change for a twenty-dollar bill. At trial, Hassan testified that a friend "Charles" had given him a credit card that was later identified as belonging to Dufel, a bank teller who had her wallet stolen during the bank robbery. Other evidence tied this friend "Charles" to Charles Toney.

The jury was also able to consider identifications of bank employees. The evidence was more than sufficient to permit any rational trier of fact to base a conviction upon the evidence. Accordingly, the district court did not err in denying the motion for acquittal based upon insufficient evidence.

Toney also submits that the prior identifications were either cumulative to the photographs or, alternatively, that the identifications were a recital of lay opinions founded on prejudicial impeachment testimony. We review a district court's evidentiary rulings for an abuse of discretion. United States v. Poschwatta, 829 F.2d 1477, 1481 (9th Cir. 1987), cert. denied, 108 S. Ct. 1024 (1988). "To determine whether the district court abused its discretion, we review whether the decision considered the relevant factors and whether there has been a clear error of judgment." United States v. De Rosa, 783 F.2d 1401, 1408 (9th Cir. cert. denied, 477 U.S. 908 (1986). We apply the harmless error rule. Id.

The government informed the court that Payton and Hassan were to be called to the stand to elicit information about matters other than their prior out-of-court identifications. Thus, their testimony would not be cumulative. The testimony of Hassan and Payton was not more prejudicial than probative.

The challenged identifications were not a recital of lay opinions founded on prejudicial hearsay evidence. Testimony admitted under Fed.R.Evid. 701 may be helpful to the jury where the witness is familiar with the defendant at the time of the crime. See United States v. Brannon, 616 F.2d 413, 417 (9th Cir.) cert. denied, 447 U.S. 908 (1980). It is possible that the jury may have benefited from these identifications, there was no prejudice, and no abuse of discretion occurred. The jury properly had before it admissible testimony on the identifications.

Toney next contends that prosecutorial misconduct denied him a fair trial. He alleges that the prosecutor disregarded the district court's admonition and referred to his brother, Clarence, a convicted bank robber, too many times. Defense counsel did not object to the prosecutor's questions and evidence about Toney's brother being in the bank. However, her in limine motions preserved for appeal the issue of the prosecutor's reference to the brother. See Palmerin v. City of Riverside, 794 F.2d 1409, 1413 (9th Cir. 1986). The record shows that the government adhered to the court's cautionary instruction and there was no error. The evidence that was received was relevant.

A claim of prosecutorial misconduct must be evaluated in the context of the entire trial and justifies reversal only when the alleged misconduct denies the defendant a fair trial. United States v. Ochoa-Sanchez, 676 F.2d 1283, 1289 (9th Cir.) cert. denied, 459 U.S. 911 (1982). Even if misconduct is found to exist, reversal is warranted only if "it appears more probable than not that the [prosecutor's] misconduct ... materially affected the jury's verdict." United States v. Nadler, 698 F.2d 995, 1001 (9th Cir. 1983); see also United States v. Polizzi, 801 F.2d 1543, 1558 (9th Cir. 1986) (reversal warranted where prosecutor misconduct materially affected the fairness of the trial).

Because the prosecutor's conduct did not materially affect the verdict, we need not decide whether it constituted misconduct.

AFFIRMED.