Unpublished Disposition, 869 F.2d 1498 (9th Cir. 1987)

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US Court of Appeals for the Ninth Circuit - 869 F.2d 1498 (9th Cir. 1987)

UNITED STATES of America, Plaintiff-Appellee,v.Sandra Marie DAVIDSON, Defendant-Appellant.

No. 88-3121.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Jan. 9, 1989.Decided Feb. 15, 1989.

Before SCHROEDER, POOLE, and NELSON, Circuit Judges.


MEMORANDUM* 

A jury convicted Sandra Marie Davidson ("Davidson") of two counts of bank robbery in violation of 18 U.S.C. § 2113(a). We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm.

On December 8, 1987, Davidson presented a demand note to Vwendolyn Thomas, a teller at the Oregon Bank in Portland, Oregon. Ms. Thomas complied, in accordance with bank policy, and gave Davidson approximately $400. Davidson never flashed a weapon nor communicated any threats.

On December 11, 1987, Joyce Hanna, a teller at the Salem, Oregon, branch of United States National branch, was handed a demand note by Davidson. Hanna, fearing Davidson had an accomplice, gave Davidson the money in her cash drawer although Davidson did not display a weapon.

Both tellers testified that they felt intimidated and threatened by Davidson and feared that she might have the capacity to use violence to back her demands.

Davidson was arrested for the robberies on December 18, 1987. After receiving Miranda warnings, Davidson voluntarily confessed to having taken money from the two banks.

Davidson filed a motion in limine, requesting the court to preclude introduction of evidence relating to two uncharged robberies and syringes found at the time of her arrest. The court denied the motion.

The prosecution's case was based on Davidson's confession, eyewitness testimony and circumstantial evidence. Defendant requested all Jencks statements relating to prosecution witness, Keith Swenson. Just prior to Swenson's testifying on direct, the government turned over to the defense notes prepared by the F.B.I. agent who had interviewed Swenson. During cross-examination, Swenson alluded to a police report, taken by the Portland police department, which the defense had never received. The government denied knowledge of the police report and offered to obtain a copy for the defense.

The defense made a motion for a continuance, in order to investigate information given by Swenson. The motion was denied.

During closing arguments, the prosecutor made statements that the defense characterized as improper. The trial court overruled objections of defense counsel.

Following the two day trial, the jury convicted Davidson of both counts of bank robbery. She was sentenced to two 78 month sentences, to be served concurrently. She timely appeals.

Under the Jencks Act, the prosecution must produce, upon request of the defense, all statements relating to the subject of a witness' testimony, after the witness has testified on direct examination. 18 U.S.C. § 3500(b). The standard of review regarding a trial judge's ruling on Jencks Act questions is abuse of discretion. United States v. Miller, 771 F.2d 1219 (9th Cir. 1985).

Davidson claims prejudice because of the belated production of the Portland Police report and of the F.B.I. agent's notes regarding the interview with Keith Swenson. Both of these claims are devoid of merit.

First, the government had no obligation to produce the Portland Police report because it did not constitute a "statement" within the meaning of the Jencks Act. To qualify as Swenson's statement under the Act, the police report would have to either have been: (1) "adopted or approved" by Swenson, or, (2) "a substantially verbatim recital" of his comments to the police officer. 18 U.S.C. § 3500(e). Swenson testified that the police officer "wrote stuff down in his daily handbook." This response demonstrates that the witness had no knowledge of the contents of the police report and therefore did not approve or adopt the report. Further, the report on its face convinces us that it does not constitute a "substantially verbatim recital" of Swenson's oral statements.

As to the F.B.I. agent's notes, we conclude that the government complied with the Act. The government delivered the notes to defense counsel prior to calling the witness, even though it was not required to do so until after the witness had testified on direct. United States v. Spagnuolo, 515 F.2d 818, 821 (9th Cir. 1975).

Finally, the denial of a continuance to afford the defendant time to evaluate the F.B.I. agent's notes did not constitute an abuse of discretion, as required by United States v. Powell, 587 F.2d 443, 447 (9th Cir. 1978). See, also, 18 U.S.C. § 3500(c). Given the limited scope of Swenson's testimony, we find the trial court's decision was reasonable.

B. Sufficiency of the Evidence of Intimidation

Davidson claims that there was insufficient evidence of intimidation, force, or violence to sustain a conviction of bank robbery. She argues instead that the maximum offense of which she can be convicted should be bank larceny.

There is sufficient evidence to sustain a conviction if "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 the original); reh'g denied, 444 U.S. 890 (1979).

When the record is examined favorably to the prosecution, it is clear that a rational trier of fact could find intimidation beyond a reasonable doubt. Davidson points to the testimony of both tellers that defendant was not rude and made no express threats of violence. However, the tellers also stated that they were frightened and believed that Davidson may have been accompanied by an accomplice--perhaps an armed one. Additionally, the tellers testified that defendant had told them "I don't want to hurt you." It is reasonable to conclude that this is a veiled threat of violence if the teller did not comply with the defendant's demands.

As we stated in United States v. Hopkins, 703 F.2d 1102, 1103 (9th Cir. 1983), cert. denied, 464 U.S. 963 (1983), "express threats of bodily harm, threatening body motions, or the physical possibility of concealed weapon [s]' are not required for a conviction of bank robbery by intimidation. We believe that the threats implicit in [defendant's] written and verbal demands for money provide sufficient evidence of intimidation to support the jury's verdict." (quoting United States v. Bingham, 628 F.2d 548, 549 (9th Cir. 1980), cert. denied, 449 U.S. 1092 (1981)). Accordingly, we decline to reverse on this basis.

Davidson claims the court committed reversible error by denying her in limine motion to preclude the admission of the syringes and evidence of uncharged robberies. We review a trial court's rulings on admissibility for an abuse of discretion. United States v. Conners, 825 F.2d 1384, 1390 (9th Cir. 1987) In the event that abuse is found, the harmless error rule applies. United States v. Gillespie, 852 F.2d 475, 478 (9th Cir. 1988)

Regarding the admission of the syringes, the trial court could have reasonably found that the evidence of drug dependency was relevant to the issue of "force, intimidation or violence." There was no abuse of discretion.

The ambiguous reference to Davidson's confession to other uncharged robberies was harmless. At issue in this case was whether Davidson used "force and violence, or intimidation" during the charged robberies. The fact that Davidson was involved in more than two robberies would probably not, in itself, predispose a jury to conclude that defendant was more likely to have employed force, violence or intimidation in the charged crimes. We find no abuse of discretion.

We find no misconduct on part of the prosecution during final argument. Counsel is permitted latitude during closing summation, United States v. Prantil, 764 F.2d 548 (9th Cir. 1985) and the government did not vouch for its the witness' credibility. See United States v. Roberts, 618 F.2d 530, 533 (9th Cir. 1980), cert. denied, 452 U.S. 942 (1981).

There is no merit to the contention that during summation the prosecutor read statements from the pretrial record that were not properly in front of the jury. The statements read were, in fact, testified to at trial.

Davidson's final contention is that the prosecution alluded to the issue of punishment in his summation. Any prejudice was dispelled by the court during its jury instructions. Accordingly, the judgment of the district court is AFFIRMED.

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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