Unpublished Disposition, 869 F.2d 1498 (9th Cir. 1989)

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US Court of Appeals for the Ninth Circuit - 869 F.2d 1498 (9th Cir. 1989)

UNITED STATES of America, Plaintiff-Appellee,v.Michael Lyman GILMAN, Defendant-Appellant.

No. 87-3129.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 8, 1989.Decided March 1, 1989.

Jack E. Tanner, District Judge, Presiding.

Before: HUG, WILLIAM A. NORRIS, and DAVID R. THOMPSON, Circuit Judges.


MEMORANDUM* 

Michael Gilman appeals his conviction on two counts of bank robbery under 18 U.S.C. 2113(a). On appeal, Gilman argues that he is entitled to a new trial on both counts on the following grounds: 1) the trial court failed to properly instruct the jury during voir dire; 2) the court incorrectly instructed the jury on the elements of each count; 3) the court admitted prejudicial testimony; 4) the court erroneously denied his motion to sever trial of the two counts; and 5) he was denied effective assistance of counsel. We consider each of Gilman's claims of error in turn.

* Gilman contends that he was denied his right to a fair trial under the Fifth and Fourteenth Amendments because the trial court did not specifically instruct the jurors to ignore certain prejudicial remarks made by a prospective juror during voir dire. Without a specific instruction by the court on the presumption of innocence, Gilman argues, the juror's statement that a newspaper had reported that the man arrested for the robberies was "probably guilty" left an "impression of guilt" in the jurors' minds. Gilman concedes that because his counsel did not object at the time, he is only entitled to a new trial if the judge's failure to issue the limiting instruction amounted to plain error. Fed. R. Crim. P. 52(b). The burden is on the defendant to show that he was actually prejudiced by the juror's statement. See United States v. Ortiz, 603 F.2d 76, 80 (9th Cir. 1979), cert. denied, 444 U.S. 1020 (1980).

We believe that Gilman has failed to meet that burden. While the trial court did not immediately instruct the jury to ignore the juror's remark, he clearly admonished the jury at the end of voir dire on the presumption of innocence. This general instruction was sufficient to cure any prejudicial effect that the statement may have had. Moreover, in light of the fact that the bank tellers were able to identify Gilman positively as the man who robbed the bank on both occasions, it is hard to see how Gilman was prejudiced by the judge's failure to caution the jury immediately after the objectionable statement was made. As we concluded in United States v. Segovia, 576 F.2d 251 (9th Cir. 1978), a case involving very similar facts, the defendant's claim of prejudice is "far too remote and speculative to support a finding of plain error." Id. at 253.

II

Gilman objects to the trial court's formulation of the "to convict" instruction, on the ground that the instruction permitted the jury to convict him of both counts without finding that the government had proven the elements of each count beyond a reasonable doubt. Specifically, Gilman argues that the instruction was ambiguous about whether the jury had to find that he had taken money by force from a teller on each of the occasions. He contends that a juror could have found him guilty on both counts even though the juror only believed that Gilman had taken money from the two tellers named in the indictment, Betty McKinney and Matthew Bell, during the first robbery.

We review the judge's formulation of the jury instructions for abuse of discretion only. United States v. Echeverry, 759 F.2d 1451, 1455 (9th Cir. 1985). Although reversal is required if the instructions are misleading or inadequate, the trial judge is given substantial latitude in tailoring the instructions. United States v. Burgess, 791 F.2d 676, 680 (9th Cir. 1986); United States v. Wright, 742 F.2d 1215, 1221 (9th Cir. 1984). We agree with the government that the instruction must be considered together with the indictment, to which it refers, and which was also given to the jury during its deliberations. Since the indictment clearly specified that each count involved a separate robbery and that each crime entailed taking money from a different teller, the jury would have understood that it had to find all of the elements for each separate count beyond a reasonable doubt. Accordingly, we cannot agree with Gilman that the instruction was ambiguous or misleading.

III

The arresting officer was permitted by the court, over defense counsel's objection, to testify that he recognized Gilman from a prior meeting. Gilman argues that the judge committed reversible error by allowing this testimony since its prejudicial effect outweighed any probative value that it might have had. In effect, the police officer's statement that he had met Gilman on a prior occasion was evidence of a prior bad act, Gilman argues, and should not have been admitted unless highly probative.

The trial court's balancing of the probative value of evidence against its prejudicial effect under Rule 403 of the Federal Rules of Evidence is reviewed for an abuse of discretion. United States v. Rubio, 727 F.2d 786, 797 (9th Cir. 1983). However, even if the trial court committed an abuse of discretion in admitting the evidence, reversal of a conviction is mandated only if it is more probable than not that the error materially affected the verdict. United States v. Bailleaux, 685 F.2d 1105, 1115 (9th Cir. 1982) (citing United States v. Valle-Valdez, 554 F.2d 911, 916 (9th Cir. 1977).

While it may have been an abuse of discretion to admit the officer's testimony since the testimony has no apparent probative value, we do not believe that Gilman has demonstrated that admission of this evidence, more probably than not, affected the verdict in this case. The evidence against Gilman on each count was overwhelming. He was positively identified as the robber on each occasion, he wore similar clothes to those worn by the robber, and he was found with a bait bill in his possession after the second robbery. Under the circumstances, it is difficult to see how the officer's statement could have had any significant effect on the jury's determination that Gilman was guilty of the two counts. Thus, it was not reversible error for the trial court to admit the officer's testimony.

IV

Before the trial began, Gilman made a motion in limine to sever trial of the two counts.1 That motion was denied. On appeal, Gilman alleges that he was denied a fair trial because his request for severance was denied. Gilman contends that he was forced to choose between testifying on his own behalf on Count II and being subjected to cross-examination on Count I--to which he did not want to testify--or not to testify at all. Because the evidence against him on Count I was so weak, he argues, it was unfair for him to have to agree to face the risks inherent in testifying on that count so as to preserve his right to testify on Count II.

Gilman's claim that he was prejudiced because he was not able to testify on Count II for fear of incriminating himself on Count I is unpersuasive. The rule is well established that " [n]o need for severance on self-incrimination grounds exists 'until the defendant makes a convincing showing that he has both important testimony to give concerning one count and strong need to refrain from testifying on the other.' " United States v. Armstrong, 621 F.2d 951, 954 (9th Cir. 1980) (quoting Baker v. United States, 401 F.2d 958, 977 (D.C. Cir. 1968) (per curiam), cert. denied, 400 U.S. 965 (1970). Although we agree that Gilman has made the requisite showing that he had important testimony concerning Count II--specifically, his testimony in support of his alibi defense--we do not believe that he has shown that he had a strong need to refrain from testifying on Count I. Admittedly, a defendant may have a strong need to refrain from testifying about a count as to which the government's evidence is very weak--the risks involved in exposing oneself to the hazards of cross-examination may outweigh any benefit in taking the stand. But where the evidence is sufficiently strong, as is true here, the need to refrain from testifying is much weaker.

In this case, the evidence against Gilman on Count I was strong. Several bank tellers were able to positively identify Gilman as the man who robbed the bank on the first occasion. Gilman's shoes bore the same mark as those photographed by the bank's cameras during the first robbery. Given this evidence, there was a greater incentive for Gilman to risk cross-examination on that count. On these facts, without some additional showing that he had reason to refrain from testifying on Count I, we cannot say that Gilman has satisfied the second part of the Armstrong test. In fact, the risks and advantages he faced in testifying on either count may have been the same, since the government's main piece of evidence for each count was the positive identification by the bank tellers. As we observed in Baker, "where the balance of risk and advantage in respect to testifying is substantially the same as to each count," the dilemma that confronts a defendant in these situations--to remain silent and lose the benefit of vital testimony on one count or to risk the prejudice that would result from testifying on the other--is not present. 401 F.2d at 978.

Gilman's reliance on United States v. Ragghianti, 527 F.2d 586 (9th Cir. 1975), is misplaced. Ragghianti does not disturb in any way the general rule that " [t]he trial judge has great discretion in ruling on Rule 14 motions, and review on appeal is limited to whether '... the joint trial [was] so prejudicial ... as to require the exercise of that discretion in only one way, by ordering a separate trial....' " 527 F.2d at 587 (citing Parker v. United States, 404 F.2d 1193, 1194 (9th Cir. 1968) cert. denied, 394 U.S. 1004 (1969). Ragghianti is distinguishable from the instant case because there the evidence on one count was so weak that the defendant's motion for acquittal on the count was granted after the close of evidence. Moreover, in Ragghianti, we stated that had the evidence on the second count been stronger, we would have been inclined to hold as harmless any error which may have resulted from joining the weaker count. Id. at 588. In the instant case, the evidence on Count I is not so weak as to have warranted acquittal on that count; indeed, Gilman was positively identified as the robber in both of the robberies. Furthermore, the evidence for Count II was so strong that we would have to find that any prejudice resulting from joining the weaker count was harmless.

V

Gilman's final claim is that he was denied his Sixth Amendment right to effective assistance of counsel because of statements made by his lawyer during closing argument. Gilman contends that his lawyer's statement that the government had proven the lesser crime of bank larceny amounted to an admission of guilt.

Strickland v. Washington, 466 U.S. 668 (1984), established the standard for reviewing ineffective assistance of counsel claims: the lawyer's performance must fall below some objective standard of reasonableness and there must be a reasonable probability that, but for counsel's performance, the result of the proceeding would have been different. Id. at 686. We cannot agree with Gilman that his lawyer's decision to concede that the government had established the lesser charge of larceny fell below objective standards of reasonableness. Admission to the lesser crime of larceny was a reasonable tactical concession in light of the fact that the bank tellers had positively identified Gilman as the man who robbed the bank on both occasions. In making this concession, defense counsel reasonably could have believed that Gilman would gain credibility with the jury necessary for the defense's theory in the case: that the government had not been able to prove the last element of the charge, the use of force and intimidation in taking the money. While in retrospect this tactical choice may have been wrong, it was not an unreasonable choice considering the strength of the evidence against Gilman. Indeed, we have recognized on very similar facts that it may be reasonable for defense counsel to concede that the defendant is the robber, so as to make more credible defense counsel's argument that the government has not satisfied its burden with respect to other elements of the crime. United States v. Bradford, 528 F.2d 899, 900 (9th Cir. 1975), cert. denied, 425 U.S. 914 (1976); see also McNeal v. Wainwright, 722 F.2d 674, 676 (11th Cir. 1984).

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 Circuit Rule 36-3