Unpublished Disposition, 907 F.2d 155 (9th Cir. 1990)

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U.S. Court of Appeals for the Ninth Circuit - 907 F.2d 155 (9th Cir. 1990)

UNITED STATES of America, Plaintiff-Appellee,v.Cecil J. GRANDY, Jr., Defendant-Appellant.

No. 88-3268.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 5, 1990.Decided June 25, 1990.

Before SCHROEDER, FERGUSON and WIGGINS, Circuit Judges.


Following a jury trial, Cecil J. Grandy was convicted of one count of unarmed bank robbery. Grandy appeals his conviction and contends that the district court erred by allowing an FBI agent to testify that 1) based upon his experience, no fingerprints had ever been identified in money recovered from bank robberies, and 2) he had received "indirect reports" that Lillian Robinson, a government witness, had information implicating Grandy regarding the bank robbery. We reject both of these contentions and affirm.

Grandy robbed a bank in Portland, Oregon, and was given money which included an exploding dye pack. As Grandy exited the bank, he was photographed by the bank's surveillance cameras, and his dye pack exploded. At Grandy's trial, the clothes worn by the bank robber as photographed by the cameras were identified as belonging to a member of Grandy's household, and Grandy was identified as the person in the photograph by Lillian Robinson, the woman with whom he had been living.

Grandy first argues that the district court erred in admitting the FBI agent's testimony regarding the lack of fingerprints on the money. At trial, Grandy's defense counsel had pointed out that there were no fingerprints found on the money dropped by the robber at the scene of the robbery. However, an FBI agent, who was assigned to a bank robbery squad, testified that he spent much of his seventeen years with the FBI investigating bank robberies and, over Grandy's generalized objection, the agent testified he "never had identifiable prints raised on money in any of my cases." Grandy contends that this testimony violated Federal Rule of Evidence 701 which requires that evidence be "helpful to a clear understanding of the ... determination of a fact in issue." Fed.R.Evid. 701. However, we have repeatedly held to the contrary.

In United States v. Christophe, 833 F.2d 1296, 1300 (9th Cir. 1987), this court approved of the admission of testimony by an FBI agent that latent fingerprints are obtained in only ten percent of bank robbery cases. Also, in United States v. Feldman, 788 F.2d 544, 554-55 (9th Cir. 1986), this court approved of an FBI agent's testimony that fingerprints were recovered less than five percent of the time. Grandy's case is indistinguishable. Here, the witness had seventeen years experience with the FBI, much of it spent investigating bank robberies. The judge and jury were told of these facts. The jury was perfectly capable of drawing appropriate conclusions from the lack of fingerprint evidence. Id.

United States v. Amaral, 488 F.2d 1148, 1153 (9th Cir. 1973), is inapposite. In Amaral, the district court excluded "expert testimony" because the "expert" was not expert in the question of reliability of eye-witness identification. Given the circumstances of that case the district court held that the testimony would not be helpful to the jury. This court agreed. However, rather than mandate that a district court make findings on the record that the expert is qualified, we simply held that qualification is one factor to consider in determining whether the district court erred in excluding such testimony.

Grandy also argues that the agent was not qualified as a fingerprint expert as required by Federal Rule of Evidence 702. However, Grandy failed to object on this ground at trial. Because Grandy failed to "stat [e] the specific ground of objection," see, Fed.R.Evid. 103(a) (1), he "is precluded from asserting" error on the basis of Rule 702. See United States v. O'Brien, 601 F.2d 1067, 1071 (9th Cir. 1979); United States v. Martin, 587 F.2d 31, 33 n. 1 (9th Cir. 1978), cert. denied, 440 U.S. 910 (1979). Had he properly objected, the government would have been given the opportunity formally to qualify the agent.

Grandy also contends that the district court erred by admitting the FBI agent's testimony that he received "indirect reports" from Robinson regarding the bank robbery. Grandy argues that the testimony was hearsay within hearsay and inadmissible under Federal Rule of Evidence 802. Grandy's argument lacks merit.

This court reviews the admission of a hearsay statement for abuse of discretion. United States v. Echeverry, 759 F.2d 1451, 1457 (9th Cir. 1985). This court also reviews a challenge to the scope of redirect examination for abuse of discretion. United States v. Makhlouta, 790 F.2d 1400, 1402 (9th Cir. 1986).

Here, the defense asked the FBI agent on recross-examination whether he was the first FBI agent to speak to Robinson. The agent responded that he already had indirect reports from her. On redirect examination, the prosecution asked whether the "indirect reports were ... that she was trying to contact you?" The agent answered, "No. That was that she had details concerning the robbery, including the dye pack, before I ever arrested Mr. Grandy." The FBI agent's statement was not offered for the truth of the matter asserted but instead as background material to explain why the agent came to interview Robinson. Therefore it is admissible under Rule 801(c) as background material. See Echeverry, 759 F.2d at 1457; Fed.R.Evid. 805.



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