Unpublished Disposition, 852 F.2d 1290 (9th Cir. 1988)

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U.S. Court of Appeals for the Ninth Circuit - 852 F.2d 1290 (9th Cir. 1988)

UNITED STATES of America, Plaintiff/Appellee,v.William A. BOGGS, Defendant/Appellant.

No. 85-1162.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 14, 1988.Decided July 15, 1988.

Before RUGGERO J. ALDISERT** , WALLACE and BEEZER, Circuit Judges.


MEMORANDUM* 

In his contention that the search warrant was infirm and violated the protections of the fourth amendment, appellant argues that it was a misstatement for Agent Degnan to state, in the supporting affidavit to the magistrate, that the bank robbers were "generally described" as white, when several witnesses had described one or both of the robbers as black. We find no misstatement.

"Generally described" does not mean "universally described." When numerous witnesses describe a suspect, there are inevitable variations. A general description is a composite description. This court has approved the use of a composite description of a robber in an affidavit supporting a search warrant. United States v. Young Buffalo, 591 F.2d 506, 511 (9th Cir.), cert. denied, 441 U.S. 950 (1979). We do not agree with appellant that the difference between the witnesses' statements and the composite description was so significant as to call for a conclusion that it was an intentional misstatement. See id. at 511 n. 8.

Even if it was a misstatement for Degnan to say that the robbers were generally described as white, etc., we do not find that he intentionally or recklessly provided false information that tended to mislead the magistrate. See United States v. Stanert, 762 F.2d 775, 780-81 (9th Cir. 1985). Agent Degnan testified that, in composing his descriptions, he drew on his experience in evaluating the accuracy of a given witness' statements. He based his descriptions on the statements of the witnesses who had the best view of the robbers. This court has repeatedly held that the opinions of experienced law enforcement agents are highly important in making probable cause determinations. See, e.g., Seybold v. United States, 726 F.2d 502, 504 (9th Cir. 1984); United States v. Foster, 711 F.2d 871, 878 (9th Cir. 1983), cert. denied, 465 U.S. 1103 (1984). We see no evidence of intentional or reckless falsity. Nor do we conclude that the magistrate was misled.

This court's decision in United States v. Davis, 714 F.2d 896 (9th Cir. 1983), does not support appellant's argument. The affidavit in Davis stated that "the affidavit had acquired much of the information contained therein through personal interviews with various informants." Id. at 897. But in fact, the affiant did not personally interview the informants. He relied on statements made by officers who had interviewed the informants, but did not indicate this in the affidavit. The affidavit, therefore, contained a clear misstatement of fact. In the present case, there is no clear misstatement. The affidavit at issue states that the information "was obtained through interview [s] with witnesses or from other FBI Agents or law enforcement officers who conducted these interviews." E.R. at 9. This statement implies that the description was a composite, as does the phrase "generally described."

In reviewing the trial court's finding of fact regarding the affidavit, this court must consider that "it may well have depended upon nuances of testimony and [the] demeanor of witnesses." Young Buffalo, 591 F.2d at 511. As in Young Buffalo, we cannot say here that any misstatements resulting from the affiant's synthesis of the available information manifested a reckless disregard for the truth, or that the district court's finding was clearly erroneous. See id. We conclude that the magistrate had a substantial basis for deciding that probable cause existed to support the issuance of the search warrant. See Illinois v. Gates, 462 U.S. 213, 238 (1983).

We find no abuse of discretion when the district court admitted evidence of the July 11 robbery at appellant's trial. The two robberies were sufficiently similar to justify admission under Rule 404(b), F.R.Evid. We find a greater degree of similarity between these two robberies than was present in United States v. Webb, 466 F.2d 1352 (9th Cir. 1972). See also United States v. Ezzell, 644 F.2d 1304 (9th Cir. 1981). The similar modus operandi goes beyond the use of masks and a gun. Furthermore, the probative value of this evidence was not substantially outweighed by the danger of unfair prejudice. Rule 403, F.R.Evid.

Nor did the district court abuse its discretion in admitting into evidence the lay opinion testimony. The witnesses were simply recounting their own perceptions of the robbers. This type of testimony satisfies the requirements of Rule 701, F.R.Evid. The decision in United States v. Bostic, 713 F.2d 401, 404-05 (8th Cir. 1983), does not hold otherwise.

Finally, we find that the evidence presented at trial was sufficient to support the appellant's conviction.

We will affirm the district court's judgment of conviction.

AFFIRMED.

 *

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

 **

Ruggero J. Aldisert, Senior Judge, United States Court of Appeals for the Third Circuit, sitting by designation