Unpublished Disposition, 857 F.2d 1479 (9th Cir. 1987)

No. 87-3099.

United States Court of Appeals, Ninth Circuit.

Before ALARCON and BEEZER, Circuit Judges, LELAND C. NIELSEN,^**  District Judge.

MEMORANDUM^*** 

Joseph W. Dougherty appeals from his conviction for armed bank robbery, carrying a firearm during a crime of violence, interference with commerce, and taking hostages during a crime of violence. We affirm.

* On July 1, 1986, the Hazel-Dell Branch of the First Independent Bank in Vancouver, Washington, was robbed of over $200,000 by two white males. Raymond Deering, the bank's assistant manager, and his family were held hostage at gunpoint in their home by the two white males throughout the previous night. At 6:45 a.m. on the morning of the robbery, the two robbers forced Deering and his family to accompany them to the bank. As bank employees arrived for work around 8:00 a.m., they were herded into an upstairs storage room. After being forced to open the bank's vault door and remove the money, the Deering family and seven other bank employees were locked in the storage room until bank employee Dennis Hansluts arrived for work at 8:30 a.m. and let them out.

On April 8, 1987, a grand jury indicted Dougherty and Terry Lee Connor for the hostage/take-over robbery of the bank. The district court granted Connor's motion for severance of the defendants at trial.

At trial, Raymond Deering, his wife, Verona, and bank employee Susan Raisi made a positive in-court identification of Dougherty. An expert FBI fingerprint examiner testified that analysis performed on a cup taken from the Deering home and used by the robbers during the night the family was held hostage revealed Dougherty's fingerprints. The examiner also testified that Dougherty's fingerprints were found on a cashier's check taken from the bank during the robbery and subsequently abandoned in Colorado.

After deliberation, the jury found Dougherty guilty and he was subsequently sentenced. Dougherty timely appeals.

II

Dougherty first argues that he was denied a fundamentally fair trial as a result of the circumstances surrounding the in-court identifications. In particular, Dougherty maintains that before making their in-court identifications, the identifying witnesses had a pre-disposed conclusion with regards to the identity of the robber because they had seen various news accounts identifying Dougherty, by name and photograph, as a suspect in the robbery. Besides citing Rochin v. California, 342 U.S. 165 (1952) for the proposition that due process requires the court to consider notions of decency, fairness, and justice, Dougherty offers no authority for his conclusory allegation.

We note that Dougherty's counsel made no objection at trial either prior to, or after, each of the three witnesses were asked to make an in-court identification of the robbery. Accordingly, our review is limited to whether the district court's failure to exclude the identification constituted plain error or a defect affecting substantial rights. Fed. R. Crim. P. 52(b); Fed.R.Evid. 103(d); United States v. Trejo, 501 F.2d 138, 141 (9th Cir. 1974); United States v. Baxter, 492 F.2d 150, 170 (9th Cir. 1973), cert. denied, 416 U.S. 940 (1974); Davis v. United States, 425 F.2d 673, 674 (9th Cir. 1970). "Reversal of a criminal conviction on the basis of plain error is an exceptional remedy, which we invoke only when it appears necessary to prevent a miscarriage of justice or to preserve the integrity and reputation of the judicial process." United States v. Bustillo, 789 F.2d 1364, 1367 (9th Cir. 1986). In applying this standard, we judge the magnitude of the alleged error in light of the evidence as a whole to determine the degree of prejudice to the defendant resulting from the error. United States v. Jarrad, 754 F.2d 1451, 1457 (9th Cir. 1985).

After a complete review of the record before us, we conclude that the pretrial publicity did not give rise to a situation that was "impermissibly suggestive as to create a very substantial likelihood of irreparable misidentification" by the witnesses. Simmons v. United States, 390 U.S. 377, 384 (1968); see also United States v. Peele, 574 F.2d 489, 490 (9th Cir. 1978); Dearinger v. United States, 468 F.2d 1032, 1035-36 (9th Cir. 1972). The evidence developed at trial reveals that each of the three witnesses had a substantial opportunity to observe the robber during the robbery. Indeed, Mr. & Mrs. Deering testified that they sat with the robbers all night--from 10:00 p.m. until 8:30 a.m. The identification witnesses were thoroughly cross-examined and gave specific reasons for their in-court identification, including distinctive features and mannerisms. All rebutted suggestions that their in-court identification was based solely on pretrial publicity. The trial record discloses no basis to indicate that the media coverage had an impermissible effect on the in-court identifications. Each witness demonstrated that his or her in-court identification was the product of observations at the time of the crime. See Jarrad, 754 F.2d at 1455. Accordingly, we find no plain error or defect affecting Dougherty's substantial rights.¹ 

II

Dougherty maintains that the government violated Fed. R. Crim. P. 16 and that the district court erred in failing to exercise its discretion in allowing fingerprint evidence to be introduced by the government. Dougherty had moved the court to suppress the government's fingerprint evidence or grant a continuance, both of which were denied. At trial, an FBI fingerprint examiner testified that Dougherty's fingerprints were found on both the coffee mug used by one of the robbers who held the Deering family hostage, as well as a cashier's check taken during the robbery.

Fed. R. Crim. P. 16(a) (1) (C) provides:

Upon request of the defendant the government shall permit the defendant to inspect and copy or photograph books, papers, documents, photographs, tangible objects ... which are within the possession, custody or control of the government, and which are material to the preparation of the defendant's defense or are intended for use by the government as evidence in chief at the trial, or were obtained from or belong to the defendant.

Fed. R. Crim. P. 16(d) (2) provides, in relevant part:

If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule, the court may order such party to permit the discovery or inspection, grant a continuance, or prohibit the party from introducing evidence not disclosed, or it may enter such other order as it deems just under the circumstances.

We review a district court's decision whether to impose sanctions for failure to comply with discovery pursuant to Fed. R. Crim. P. 16(d) (2) for an abuse of discretion. See United States v. Burgess, 791 F.2d 676, 681 (9th Cir. 1986). The district court's decision regarding a motion for a continuance is likewise reviewed for an abuse of discretion, United States v. Pederson, 784 F.2d 1462, 1464 (9th Cir. 1986); Dearinger, 468 F.2d at 1034, and will not be overturned unless arbitrary or unreasonable, United States v. 2.61 Acres of Land, More or Less, 791 F.2d 666, 670 (9th Cir. 1985). The district court also possesses wide latitude in controlling discovery, and its rulings will not be overturned in the absence of a clear abuse of discretion. Canadian American Oil Co. v. Union Oil Co., 577 F.2d 468, 473 (9th Cir.), cert. denied, 439 U.S. 912 (1978).

The record reveals that Rule 16 discovery relating to the FBI fingerprint examiner's testimony, which included the fingerprint analysis report and copies of the latent prints lifted from the crime scene, were provided to Dougherty's counsel on May 19, 1987--six weeks before the trial commenced on July 7, 1987. In June, Dougherty's counsel requested copies of both the latent fingerprints taken from the crime scene and Dougherty's prints of record used to perform the fingerprint analysis. This evidence was furnished on July 2, 1987. Dougherty argues that the government's failure to provide this information until July 2, 1987 violated Fed. R. Crim. P. 16 and greatly prejudiced him in the preparation of his defense. Dougherty further maintains that the district court abused its discretion in refusing to suppress all of the government's fingerprint evidence or grant a continuance of the trial to allow his expert to prepare for testimony. We disagree. Even if we were to find that the government violated Fed. R. Crim. P. 16, the district court did not abuse its discretion in dealing with the alleged violation.

After making sure that Dougherty's fingerprint expert would receive the requested photographs, the district court made clear that a continuance during the trial would be allowed if necessary, i.e., if after examining the evidence, the defense expert concluded that the fingerprints were not that of Dougherty. After the defense expert received the requested fingerprint information, Dougherty's counsel informed the district court that he would not be calling the expert or any other witness. Thereafter, Dougherty's counsel did not object when the FBI fingerprint examiner was called to testify, nor did he renew his motion for a continuance.

Finding no error or abuse of discretion, we affirm.

AFFIRMED.