Unpublished Disposition, 867 F.2d 614 (9th Cir. 1987)

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US Court of Appeals for the Ninth Circuit - 867 F.2d 614 (9th Cir. 1987)

UNITED STATES of America, Plaintiff-Appellee,v.Clifford Shizuo RYONO, Defendant-Appellant.

No. 88-5032.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Jan. 9, 1989.Jan. 25, 1989.

Before ALARCON, BRUNETTI, and DAVID R. THOMPSON, Circuit Judges.


MEMORANDUM* 

Clifford S. Ryono appeals from the judgment entered following his convictions under 18 U.S.C. Section 2113(a) and (d) for armed and unarmed bank robbery. Ryono challenges the denial of his motion to suppress photospread identification, the denial of his motion to suppress evidence of his heroin addiction, and the sufficiency of the evidence. We affirm.

* Statement of the Case

On September 18, 1987, Ryono was charged in a three-count indictment with bank robbery. Count one charged Ryono with armed robbery of Home Savings of America in La Mirada, California, in violation of 18 U.S.C. section 2113(a) (d). Count two charged Ryono with unarmed robbery of Wells Fargo Bank in Santa Ana, California, in violation of 18 U.S.C. section 2113(a). Count three charged Ryono with unarmed robbery of First Interstate Bank in Costa Mesa, California, in violation of 18 U.S.C. section 2113(a). After a four day jury trial, Ryono was convicted of counts one and three. The jury acquitted Ryono on count two.

Ryono's trial began on November 24, 1987. On November 30, 1987 Ryono filed two motions. The first motion requested the exclusion of evidence of Ryono's heroin addiction. The second motion requested the suppression of testimony concerning photospread identifications and in-court identifications.

The district court denied Ryono's motion to exclude evidence of his heroin addiction finding the evidence relevant to show motive. The district court denied Ryono's motion to suppress the photospread and identification testimony because the motion was untimely. The district court did, however, grant Ryono's motion for an in-court line up and motion to allow testimony of an expert witness on identification. The motion for an in-court line up was subsequently withdrawn because the defense was unable to secure individuals resembling Ryono.

At trial teller Katrina Smith testified that Home Savings of America in La Mirada, California, was robbed on July 31, 1987. Smith testified that Ryono approached her teller station and demanded her "hundreds, fifties, and twenties." Smith hesitated and Ryono displayed the handle of a gun protruding from his waistband. Smith testified she activated the alarm with the bait money. Ryono took the money and fled.

Smith testified that the robbery took approximately one and a half minutes, the lighting in the bank was good, and she got a good look at the robber. After the robbery she described the robber as 30 to 35 years old, 5'6" to 5'7"', slender build, with dark hair parted in the middle, and dark eyes which looked oriental.

Smith further testified that six weeks after the robbery the FBI showed her a photospread containing six photographs. FBI agent Tidyman admonished Smith that the robber might not be in the photospread. Smith identified Ryono, who was in the number one position, as the robber. On a scale of one to ten, Smith rated her identification as an eight. At trial she identified Ryono as the robber stating she was "100% positive" he was the man who robbed her.

Teller Lorraine Letora testified that the First Interstate Bank in Costa Mesa, California, was robbed on August 20, 1987. Letora testified that the robber asked for either all her fifties or all her "large money." Letora gave him the money from her drawer and he demanded more. Letora activated the alarm and the cameras. Then she gave the robber more money. Finally, after his third demand for money, the robber left.

Letora described the robber as being 5'7", 165 pounds, with a moustache and a scar on his right cheek. She testified that he was either Mexican or Hawaiian. Letora further testified that a week after the robbery she was shown a photospread with six photographs. She was told that the robber might not be in the photospread. Letora picked Ryono in the number one position as the robber. At trial Letora identified Ryono as the robber stating that she remembered his face from the robbery.

The government also called Alice Simpson, a nurse at the Huntington Beach City Jail, as a witness. Simpson testified that she interviewed Ryono after his arrest. Ryono told Simpson that he "shot up" with heroin several hours before his arrest. Simpson further testified that Ryono had "trackmarks" on his arms.

At the close of the government's case in chief, Ryono renewed his suppression motion and moved to strike the identification testimony of witness Smith (Count I) and witness Lim (Count II). After hearing argument from both counsel, the court denied the motion. The court held that the photospread was not impermissibly suggestive and that the government had proved by clear and convincing evidence that the in-court identifications were not tainted. At the close of the defendant's case the defense renewed its motion to strike the in court identifications. The court denied the motions.

On December 4, 1987, the jury returned guilty verdicts on counts one and three. The jury acquitted Ryono of the Wells Fargo robbery, count two. Ryono appeals from his convictions on counts one and three.

II

Identification Testimony

Ryono contends that the district court erred in failing to suppress the identification testimony of tellers Smith and Letora. Ryono asserts that the pretrial identifications were tainted by the impermissibly suggestive photospread. Ryono asserts that the photospread was impermissibly suggestive to teller Smith because Ryono was the only clearly oriental man in the photospread. Ryono asserts that the photospread was impermissibly suggestive to teller Letora because Ryono was the only man in the photospread with a scar on his right cheek.

We review independently and non-deferentially the constitutional impact of pretrial identification procedures. United States v. Bagley, 772 F.2d 482, 492 (9th Cir. 1985), cert. denied, 475 U.S. 1023 (1986). A two step inquiry is used to determine whether a pretrial identification procedure is constitutional. United States v. Givens, 767 F.2d 574, 581 (9th Cir.), cert. denied, 474 U.S. 953 (1985). We must first decide whether the procedure was so impermissibly suggestive as to give rise to a substantial likelihood of irreparable misidentification. Simons v. United States, 390 U.S. 377, 384 (1986); Givens, 767 F.2d at 581. This requires us to examine the totality of the surrounding circumstances. Bagley, 772 F.2d at 492. If the identification procedure was impermissibly suggestive, we must then determine whether it was "nonetheless reliable." Neil v. Biggers, 409 U.S. 188, 198-200 (1972); Givens, 767 F.2d at 581.

With respect to the identification testimony of witness Smith, Ryono preserved this issue for appeal by filing a motion to suppress the testimony at trial and by moving to strike the testimony after the government's case in chief. The district court denied the motions finding that the photospread was not impermissibly suggestive.

With respect to the identification testimony of witness Letora, however, Ryono challenges this testimony for the first time on appeal. Under such circumstances we may not review the challenged error unless Ryono can demonstrate that the admission of Letora's testimony was plain error affecting Ryono's substantial rights. United States v. Dadanian, 818 F.2d 1443, 1445 (9th Cir. 1987). Ryono can establish plain error if the evidence was inadmissible and its admission affected the outcome and Ryono's right to a fair trial. Id.

Our independent review of the photospread and the record convinces us that the six picture photospread was not impermissibly suggestive to teller Smith. We agree with the district court that the FBI could have placed more Orientals in the photograph since Smith described the robber as looking oriental. However, as the Second Circuit has stated, " [t]he due process clause does not require law enforcement officers to scour about for a selection of photographs so similar in their subject matter and composition as to make subconscious influences on witnesses an objective impossibility." United States v. Bubar, 567 F.2d 192, 199 (2d Cir.) cert. denied, 434 U.S. 872 (1977). At least three of the men in the photographs fit witness Smith's description of a 30 to 35 year old male with straight dark hair parted in the middle, dark eyes, and a moustache. Moreover, Smith was admonished that the robber might not be in the photospread. Despite this, she picked Ryono and at trial testified that she was "100%" sure because she remembered him from the robbery.

Because we find that the photospread was not impermissibly suggestive to Smith, given witness Letora's description of the robber, it was not suggestive to her either. Letora described the witness as either Mexican or Hawaiian with a moustache. At least five of the six photographs fit this description. Moreover, Ryono's attorney acknowledged to the district court that admission of Letora's identification testimony would not violate due process stating:

Significantly, Your Honor, I'm not asking that the Court preclude the government from introducing photospread testimony regarding Count III. In that count, the teller, at least told one police department, that she thought the robber was Mexican or Oriental [sic]. And in that situation, I would think that the photospread was probably not a violation of due process.

Letora also described the robber as having a scar on his right cheek. Although Ryono appears to be the only man in the photospread with a scar on his right cheek, we do not believe this makes the photospread impermissibly suggestive given the fact that five of the six men in the photographs fit the rest of Letora's description. Distinctive scars or birth marks are often the type of characteristics which make it difficult for law enforcement officers to find similar photographs to place in a photospread. At the same time such characteristics make it easier for a witness to identify the robber. In fact, Letora specifically testified that she could remember and identify the robber due to the scar on his face which she remembered from the robbery.

The district court properly found that the photospread was not impermissibly suggestive to Smith or Letora. Ryono has failed to establish that the admission of Letora's identification testimony amounted to plain error. Because the district court reached the merits of Ryono's motion to strike the identification testimony, we do not reach the issue concerning the timeliness of the suppression motion.

Evidence of Heroin Addiction

Ryono contends that the district court erred when it allowed the prosecution to present evidence of his heroin addiction to show motive to rob the banks. A district court has wide discretion to admit or exclude evidence. We will not reverse a district court's decision to admit evidence of motive unless the district court has abused its wide discretion. United States v. Parker, 549 F.2d 1217, 1222 (9th Cir.) cert. denied, 430 U.S. 971 (1977).

In the instant matter, the district court found that the evidence of Ryono's heroin addiction was relevant to show motive and was more probative than prejudicial. We agree. We have previously held that evidence of heroin addiction is admissible to show motive to rob a bank. Id. at 1222; United States v. Saniti, 604 F.2d 603, 604 (9th Cir.) cert. denied, 444 U.S. 969 (1979). Such evidence is of probative value in a case involving a crime resulting in financial gain. Id. The district court did not err when it admitted evidence of Ryono's heroin addiction.

Sufficiency of the Evidence

Ryono asserts that there was insufficient evidence to connect him to the commission of the bank robberies. In reviewing a claim that the evidence was insufficient, we must determine whether any rational trier of fact could have found that the crimes were committed by the accused beyond a reasonable doubt after viewing the evidence in the light most favorable to the prosecution. Jackson v. Virginia, 443 U.S. 307, 309 (1979); United States v. Vaccaro, 816 F.2d 443, 454 (9th Cir.) cert. denied, 108 S. Ct. 262 and 295 (1987).

In the present case, in reference to count one, teller Smith testified and positively identified Ryono as the man who displayed a gun and robbed her. In addition, surveillance photographs were introduced to corroborate her identification of Ryono. With reference to count three, teller Letora testified unequivocally that Ryono was the man who repeatedly demanded money from her. The surveillance photographs matched Letora's description of the robber. We are satisfied that a reasonable jury could conclude that the evidence demonstrated beyond a reasonable doubt that Ryono committed the robberies.

The judgment of the district court is 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