Unpublished Disposition, 927 F.2d 611 (9th Cir. 1991)

MEMORANDUM^*

Bean appeals his conviction and 210-month sentence for one count of unarmed bank robbery in violation of 18 U.S.C. § 2113(a).

Bean was charged with robbing a Sumitomo Bank on July 6, 1989. There was evidence that he approached a teller, pounded his fist on the counter and demanded money. He was given money, including bait bills, and then he ran out of the bank. Police arrested Bean near the bank. They found the money sack containing $764.00, including bait bills, along the route Bean had walked.

There was evidence that Bean told the officers who arrested him that he committed the bank robbery on his own. Also, three bank employees identified Bean as the bank robber, and the government introduced surveillance photographs of Bean taken during the robbery.

At trial, Bean testified that he was not in the bank when the robbery occurred and denied having made any admission.

We affirm.

Bean makes the following assignments of error which we discuss in turn.

We review the denial of a motion to substitute counsel for abuse of discretion and consider three factors: " '(1) timeliness of the motion; (2) adequacy of the court's inquiry into the defendant's complaint; and (3) whether the conflict between the defendant and his attorney was so great that it resulted in a total lack of communication preventing an adequate defense.' " United States v. Walker, 915 F.2d 480, 482 (9th Cir. 1990) (quoting United States v. Rogers, 769 F.2d 1418, 1423 (9th Cir. 1985)).

Bean moved to substitute counsel on the first day of trial. The record indicates that Bean's reasons for requesting new counsel were that "Mr. Stanford obviously doesn't have enough scruples in order to represent me" and that "obviously he's very intimidated by you as a judge." The record reflects that the court responded that this was Bean's third lawyer/¹; that Bean had said the same thing about each lawyer; that Mr. Stanford was a capable lawyer; and "I'm sure he's doing every [thing] in your best interest."

This case differs from United States v. Walker, 915 F.2d 480 (9th Cir. 1990). Bean was simply remaking a motion that had been made thrice previously. It was not error for the trial court to give a terse reply.

The record reflects that: (1) Bean's motion to substitute counsel was made the day of trial and would have necessitated a continuance if granted; and (2) counsel had been substituted twice previously based on similar motions. The trial court did not abuse its discretion in denying Bean's third motion to substitute counsel.

2. Cross-examination as to prior robbery conviction

Bean argues that his response on cross-examination that he had been convicted of armed robbery 10 or 11 years before the present offense was inadmissible because the conviction was not recent and was dissimilar to the present charge.

Federal Rule of Evidence 609(a) allows evidence of a prior conviction for the purpose of attacking credibility if the crime was punishable by imprisonment in excess of one year and the court determines that the probative value of the evidence outweighs the prejudicial effect. In balancing probative value against prejudicial effect, the trial court should consider:

"(1) The impeachment value of the prior crime.

(2) The point in time of the conviction and the witness' subsequent history.

(3) The similarity between the past crime and the charged crime.

(4) The importance of the defendant's testimony.

(5) The centrality of the credibility issue."

United States v. Cook, 608 F.2d 1175, 1185 n. 8 (9th Cir. 1979) (quoting United States v. Mahone, 537 F.2d 922, 929 (7th Cir. 1976)), cert. denied, 444 U.S. 1034 (1980).

Under this test, admission of Bean's prior armed robbery conviction was not plain error. Prior convictions for robbery are probative of veracity. United States v. Givens, 767 F.2d 574, 580 (9th Cir.), cert. denied, 474 U.S. 953 (1985). Bean's conviction occurred in 1981, within ten years of the present offense, and Bean was released from prison on that conviction only three years before the present offense. The past conviction was for armed robbery, conduct similar to the offense charged and Bean's credibility was in issue because he denied participation in the offense.

A defendant is entitled to a jury instruction on a theory of defense only "if the theory has a basis in law and in the record." United States v. Hayes, 794 F.2d 1348, 1350-51 (9th Cir. 1986), cert. denied, 479 U.S. 1086 (1987).

Following formal request by the government for notice of alibi, the defendant must file written notice of alibi. Fed. R. Crim. P. 12.1(a). The government filed a Demand for Notice of Alibi on August 24, 1989, to which Bean did not formally reply. The court stated that its reason for denying the instruction was Bean's failure to provide written notice of the defense.

Bean argues that because the government had actual notice of the alibi defense from a pretrial joint discovery conference, it was reversible error to deny the instruction. However, the refusal to allow an alibi defense because notice was tardy has been upheld where the government's case identifying the defendant was especially strong. United States v. Barron, 575 F.2d 752, 758 (9th Cir. 1978). The government's evidence identifying Bean was substantial. Three witnesses testified that Bean was the bank robber, and bank surveillance photographs identified Bean as the robber. Bean's alibi was that he was not in the bank at the time of the robbery, but rather was on the sidewalk in front of the bank. He produced no witnesses to verify his account. Bean's failure to comply with Rule 12.1(a) coupled with the strength of the government's case precludes a holding that the court erred in its refusal to give the alibi instruction.

Under 18 U.S.C. § 3552(d) (1988), the court shall assure that the presentence investigation report is disclosed to the defendant, his counsel, and the government attorney at least ten days before sentencing unless the defendant waives the minimum period. United States v. Turner, 898 F.2d 705, 713-14 (9th Cir.), cert. denied, 110 S. Ct. 2574 (1990).

Bean was sentenced on November 27, 1989, in a proceeding that began at 1:30 p.m. The record reflects that his counsel did not deliver the presentence report to him until the day of sentencing, either at 10:30 a.m. or 12 noon. We have not been advised of when Bean's lawyer received the report.

At sentencing Bean requested additional time to review the presentence report. The court took a recess so that Bean could review the report. After the recess, Bean objected to his status as a career offender and contested his involvement with a drunk driving conviction. He alleged that 90% of the report was wrong. The trial judge asked Bean for the page and line of facts he wanted to challenge. Bean responded:

Your Honor, I'll submit them to the appellate court along with the reasons why I was not able to submit 'em here and ... I'll let the appellate court deal with it.

Bean's failure to make any attempt to indicate to the court what he contended was erroneous in the presentence report or to state why he could not do so precludes a finding of error on appeal.

The application of career offender status under the sentencing guidelines is a question of law which we review de novo. see United States v. Davis, No. 90-30137, slip op. at 47 (9th Cir. January 4, 1991).

Pursuant to United States Sentencing Guideline 4B1.1 the district court sentenced Bean as a career offender because he was over eighteen years old at the time of the offense; the offense was a crime of violence; and he had two prior felony convictions for crimes of violence. The court applied a criminal history category of VI, and increased the offense level from 19 to 32.

Section 4A1.2(a) (2) of the guidelines states that in computing criminal history levels under the guidelines:

Prior sentences imposed in unrelated cases are to be counted separately. Prior sentences imposed in related cases are to be treated as one sentence for purposes of the criminal history.

Bean argues that it was error for the sentencing court to count his prior convictions separately because they were related cases. The commentary to Sec. 4A1.2 states that " [c]ases are considered related if they (1) occurred on a single occasion, (2) were part of a single common scheme or plan, or (3) were consolidated for trial or sentencing."

Bean was convicted in United States District Court in Albuquerque, New Mexico, for the June 7, 1978 armed robbery of a motel. He was sentenced on February 20, 1979 to serve 10 to 15 years concurrently with a 5-year federal sentence for interstate transportation of a firearm. He also was convicted in Arizona Superior Court for the June 5, 1978 armed robbery of a market, and was sentenced February 13, 1979 to 5 years to run concurrently with the federal sentences.

Bean argues that the two prior felonies were part of a two or three-day "spree," and that under United States v. Hauser, 916 F.2d 1432, 1437 (9th Cir. 1990), the prior offenses were "part of a single common scheme or plan" and should have been treated as one sentence for purposes of criminal history. We reject the argument. First, the Hauser opinion on which Bean relies has been withdrawn. Second, even Hauser 's reasoning does not require us to treat these offenses as related. Here, the prior offenses were separate armed robberies, and the convictions and sentences were obtained separately.

Federal Rule of Criminal Procedure 32(a) (1) (C) requires that before imposing sentence, the sentencing court "address the defendant personally and determine if the defendant wishes to make a statement and to present any information in mitigation of the sentence."

Here, the court allowed Bean to speak after, rather than before, imposing sentence. The district court erred in granting Bean his right of allocution after sentence had already been imposed, instead of following the requirements of Rule 32. However, this error was not prejudicial. After he was permitted to address the court, Bean reiterated his belief that the Spanish government would extradite him. Bean had earlier stated this belief to the probation department, and the department had included this information in the presentence report. Nothing Bean said after his sentencing would have affected his Guidelines sentence. Therefore, we hold that the error was harmless.

AFFIRMED.