United States v. Ernest James Perkins

complement, replace, general and not to “should not urge that through general smuggling provision. amending do permitted to Act, Congress “felony it could not other- smuggling statute what observed that directly.” penalty importations wise do scheme for unlawful existing is consistant with wildlife [sic] Wesley are correct in as- Lee and Hsu if provided customs law. Even this Act laundering charge money serting that penalty only a misdemeanor for the unlaw- 1956 could not be based under U.S.C. § wildlife, importation importa- ful such case, In this solely upon an Act violation. felonies under the tions would be customs however, laundering charges money prohibits knowing importations law which upon a section 545 clearly predicated were ” ‘contrary S.Rep. law.’ No. 97th [to] violation, qualify as which does smuggling Cong., reprinted 1st in 1981 Sess. They activity.” “specified unlawful Cong. Code & Admin.News cit- smug- hold that section 545 would have us 545. conclude that ing U.S.C. We § money support a gling offenses cannot Congress desired that section 545 continue charge any point if at laundering apply importations to unlawful of fish on Act viola- smuggling offenses are based and wildlife. tions. may prop- Because a section 545 violation recognize that argument Their fails to smuggling erly upon be based of salm- result effect will often such a chainlike Act, contrary money launder- are money laundering allegations

when Wesley ing charges against Lee and Hsu 18 U.S.C. on section 545 violations. based were valid. 1956(c)(7)(D) expressly money allows § laundering grounded to be sec- violations AFFIRMED. smuggling But section

tion 545 offenses. mer- only prohibits importation Thus, “contrary law.” one chandise statute, another such always must look to Act, determine whether a viola- as the place. 545 has taken And 18 of section impose any expo- 1956 does not U.S.C. § test; smug- require it does not nential gling violations under section 545 be based America, STATES of UNITED statutes. only upon certain enumerated Plaintiff-Appellee, laundering allegations may be Money offenses, sec- upon based section 545 PERKINS, Ernest James upon the offenses be based tion 545 Defendant-Appellant. contrary that is importation of merchandise any law. We therefore conclude No. 88-5237. government’s charge proper. Appeals, Court of that, Wesley contend Lee and Hsu also Ninth Circuit. Act, Congress intended to with- passing the Dec. 1990.* Submitted wildlife from the definition draw fish and If of “merchandise” 18 U.S.C. 545. § July Decided true, smuggling into the that were salmon Act could States violation of the importation not constitute the of “merchan- contrary under the

dise to law” statute. clear, legislative history makes it how- ever, Congress intended the Act to

* 34(a). Fed.R.App.P. panel appropriate Circuit Rule 34-4 and finds this case for submis- argument pursuant to Ninth sion without oral Deitch, Cal.,

Philip Angeles, Los for de- fendant-appellant. Schiff, Atty., B.

Adam Asst. U.S. Los Cal., Angeles, plaintiff-appellee. for WALLACE, Judge, Before Chief and RYMER, O’SCANNLAIN and Circuit Judges.

RYMER, Judge: Circuit appeals his conviction for Ernest Perkins 2113(a). under U.S.C. § court made sev- Perkins claims the district evidentiary rulings and im- eral erroneous on conscious- properly instructed ness of affirm. We

I. Facts approximately

On November p.m., single approached a black male 12:40 in the Purmont’s teller window Ms. Linda Bank in Whittier. California Southern moustache, man, wore a rust-col- who had lapels wide bottom ored suit with bell a maroon soft-sided brief- pants and carried placed pouch then on the coun- case. He which pushed ter and a note toward her stated, robbery. gun I “This is a large money.” As the your want all taking money out of her teller started drawer, repeated that he had a the man large bills. gun and his demand the crime. committed $653 man a total of gave the teller Armstrong, Cir. as the cameras surveillance activated the 1980); Brannon, at 418. One left the bank. robber identity by way proving mistaken was indict- On December showing that crimes similar detail other robbery. On of bank on four counts ed at or have been committed about however, “cer- due to February by person time other than the defendant. evidentiary problems,” tain course, may exclude Of the district court four counts. three of the to dismiss moved 403, if it is this evidence under Fed.R.Evid. ground on the the motion opposed likely to confuse the issues or mislead and defense strat- preparation trial that his jury. indict- on the four count egy were based granted The district court ment. “identity” exception to Rule dismiss, leaving motion to government’s 404(b) requires that the characteristics only for the November to be tried Perkins “sufficiently dis the other crime or act be Bank robbery the Southern California 9 an inference that tinctive to warrant four-day trial in which After a in Whittier. committed the act also commit person who testified, jury Per- found the defendant v. the offense at issue.” United States ted Per- district court denied guilty. The kins Andrini, (9th F.2d 1097 Cir. 685 a new trial and sentenced motion for kins’s 1982). both the the characteristics of “[I]f imprisonment. years him to twelve charged and the offense are prior offense distinctive, way are similar any of Dismissed II. Evidence by crimes committed to numerous other Robbery Counts defendant, infer persons other than the no court im- claims that the district Perkins arise.” United States identity can ence of intro- pretrial motion to properly denied Powell, Cir.1978). (9th v. F.2d 448 404(b) Fed.R.Evid. duce evidence under robbery counts and contends the dismissed operandi the dis The modus ruling precluded the district court’s sufficiently similar to missed counts is not theory the case. developing him charged support an infer offense op- argues that the distinct Perkins modus un identity and warrant admission ence of of the four crimes shows erandi 404(b). all Rule The robberies involved der person committed all of the robberies same wearing disguis various supposedly a man Perkins was at work dur- and that because beard, etc.), (fake moustache, glasses, es them he could not the robber. ing two of be something teller with approaching the government ini- stresses that money, handing teller a carry away theory him tially proceeded against on the requesting making a statement note or charged that he committed each of the four push warning the teller not to money, and robberies, accordingly, he should be court, any buttons. the district preserve theory the same of de- able to the fact that the robber used seized on fense even after dismissed carry money racket cover to tennis three of the counts. sufficiently distinctive feature of away as a court’s decision admit The district However, unusual, while the crimes. balancing and the or exclude evidence “signature” present element was alleged against prejudicial probative value effect of the four robberies and not only two for an abuse of discretion. are reviewed robbery for which Perkins the November Kessi, v. States United ultimately convicted. While was tried and Brannon, Cir.1989); (9th person may have committed the (9th Cir.), robberies, cover” two “tennis racket 908, 100 nothing similarity says of those crimes offense. about who committed instant at issue did A defendant is entitled to introduce The not involve “peculiar, unique, or bizarre” so as prove evidence which tends to someone else conduct case, the personal signature; rather district court did not its to constitute a abuse by to most bank robberies. See excluding it was similar discretion the evidence as not Ezzell, 644 F.2d v. probative identity 404(b) under Rule (9th Cir.1981) (quoting Parker likely to mislead or jury confuse the under States, Cir. event, In any Rule 403. the district court 1968)). similarity between “The deprive opportunity did Perkins of the were ones which are so robberies [two] present defense; evidence critical to his robberies as to be common to most bank to, permitted did, Perkins was present unhelpful.... requirements entirely [T]he other evidence argue from which he could 404(b) met here.” Id. of Rule were not and the could infer that someone else committed the crime. Nor did the district

Moreover, even if the evidence was prevent rebutting court Perkins from evi 404(b), it properly under Rule admissible by government.1 dence introduced undergo probative- must nevertheless balancing required under Rule prejudice if the 403 and excluded Jury III. Instructions Andrini,

likely misled. to be confused or Perkins contends that the district 1097; Brannon, 616 F.2d at 685 F.2d at instructing court erred that it district court did not abuse its 418. The exculpatory could false consider state focusing in the trial on the of discretion alleged change appearance ments and an of issue, allowing parties fense at and not guilt. as evidence of consciousness of several stray to and discuss the details of adequacy jury instructions is determined extraneous robberies. by examining entirety. them in their Unit cannot transform the exclu Perkins Feldman, 544, ed v. 788 F.2d 555 States evidence into constitutional er sion this (9th Cir.1986), 1067, cert. by arguing deprived that he was of his ror 955, (1987). The right to right present to a defense. give in jury district court’s decision to a fundamental, present clearly a defense is struction is reviewed for abuse of discre right, the exercise of this “[i]n tion. Id. accused, State, required as is of the must comply procedure rules with established A. Instruction Consciousness Guilt designed and to assure fair evidence both The district court instructed the reliability in ness and the ascertainment of jury exculpatory statements that false guilt and innocence.” Chambers v. Missis 1038, considered as evidence of con sippi, 410 93 be U.S. S.Ct. 297, that guilt.2 35 L.Ed.2d 313 In this sciousness of Perkins contends Whitman, instruction, Compare 1 & 771 F.2d 2. The court's taken from Devitt Blackmar, (9th Cir.1985) (error Jury prevent Federal Practice and Instruc- to de 1351 15.12, tions, rebutting by was as follows: § evidence fendant from government introduced jury might defendant, including from which infer mo of a state- Conduct tive); (error Armstrong, knowingly 621 to ex knowingly 953 made and acts ments testimony matching de upon being clude another man has done informed that a crime committed, money pur scription upon being of the robber used bait been or confronted Rushen, car), Perry charge, may by chase a with v. 713 F.2d be with a criminal considered (9th Cir.1983) (state light 1455 court’s exclusion in the of all other evidence in other, determining guilt person innocence. of evidence that third committed the case in or voluntarily per area and When a defendant and inten- similar crimes same that third arguably tionally explanation an or makes some son resembled defendant did not vio offers innocence, amendments; tending show his late sixth and fourteenth evidence statement closely explanation or is later not "critical" or “so connected to the statement shown false, innocence”), jury may consider whether this issue of denied, or [defendant’s] U.S. L.Ed.2d circumstantial evidence to conscious- Brannon, (1984); (no guilt. 616 F.2d at 418 abuse ness of Ordinarily excluding photographs of a it is reasonable to infer that discretion usually person person third when concluded that does not find it nec- district court innocent essary person photographed explanation to invent or fabricate an or did not resemble the defendant). tending statement to establish his innocence. visiting parole his ments be considered as questioning while circumstantial his guilt, Courthouse was evidence of consciousness of officer at and that regarding sufficiently up confrontational it to determine signifi charge justify in a criminal involvement cance of the evidence. Perkins’s reliance hold the giving of the instruction. We Stefano, on United States v. Di 555 F.2d proper in this case. instruction (2d Cir.1977), misplaced. is therefore Stefano, explicitly In Di the instruction Dezihan, arresting Agent of the offi- one stated, jury may “the consider false [the cers, testified that Perkins was advised as circumstantial evidence of statements] rights signed a waiver of his written guilt.” the defendant’s Id. at 1104. Sec prior questioning. Dezihan first asked ond, approved we the use of this “if he had been involved Perkins exculpatory instruction on false state responded Perkins bank robberies.” Boekelman, ments. v. See United States agent inquired then how he had not. The Cir.1979) (court building if got Perkins approval noted falsely responded standard Devitt & Black- owned a car. Perkins friend, parked distinguished had not but was mar instruction and who Di Stefa “just building” dropped driving upholding around the no variation from the stan instruction); him off at the courthouse. Perkins also Wood, dard States presently stated that he did not own a car (9th Cir.1976). Following because he had sold it. his ar- interview, the

rest at the end of the offi- Change Appearance B. Instruction registered Datsun cers discovered blue Perkins also claims the district building parked close to the instructing court erred in that it keys pocket. found the to the car change a ap consider defendant’s of jury Agent If the credited Dezihan’s tes- pearance as evidence of consciousness of timony, response it could find in guilt.3 government justifies the in incriminating questions agent, of an FBI struction from the fact that the bank sur waiving rights, after his Miranda photographs veillance show the robber to exculpatory lied. Perkins’s false state- moustache, long, have a thick whereas the properly ments therefore could be con- booking photograph of Perkins him shows sidered as evidence of consciousness of only growth to have a small amount of guilt. instruction, lip. flight over his A modified changes appearance, “only is valid challenges also instruction along when the links the extended chain of grounds permits jury on the that it from the inference defendant’s behavior to consider the statements as evidence of guilt charged actual of the crime are un guilt, guilt. rather than consciousness of broken, flight The instruction does not instruct the and when the defendant’s guilt; the conduct of rath- reaction is immediate to the crime.” is evidence Feld er, man, the instruction that false state- at stresses 555.4 determining Whether or evidence as to a defendant's all other evidence in the case in voluntary explanation guilt or statement to a or innocence. guilt, significance change consciousness of and the Whether or not evidence of a of evidence, any be attached are such matters appearance guilt shows a consciousness of exclusively province jury. within the of the significance any and the evidence, to be attached to 7, 1988), Reporter's Transcript (April 187-88. exclusively are matters within the province jury. of the instruction, flight 3. This a modified instruction 7, 1988), Transcript (April Reporter’s at 189— Blackmar, Jury from 1 Devitt & Federal Practice 90. Instructions, 15.08, was as § follows: '(1) justified: inferences must be from "[F]our change ap- A defendant’s intentional of his (2) flight; the defendant's behavior to pearance immediately after the commission (3) flight guilt; to consciousness of from con- after is accused of a of crime or he crime committed, not, course, guilt guilt sciousness of to consciousness of con- of that has been is (4) cerning charged; guilt, the crime from con- sufficient in itself to establish his concerning may by light guilt of of the crime considered sciousness only of case Perkins to have a small amount the record agree that We in- supporting lip, growth facts over his while bank surveil- does not contain appearance change A instruc- the robber have struction. lance show independent evi- contemplates some thick moustache indicates that the him- indicating that the dence and the defendant at his arrest have robber defendant changed his actually appearances, different not that Perkins re- self Thus, shortly is known when a defendant cently shaved off a moustache. The record crime to have cut the commission of a after independent does not contain evidence that hair, hair, changed facial or shaved off prior Perkins had moustache rob- color, jury can consider this as his hair (or removed) bery, or that he shaved off guilt and con- evidence of consciousness any prior moustache at time to his arrest. light the other evidence sider it in Accordingly, improperly the district court guilty. is deciding whether defendant change appear- instructed the McKinley, 485 F.2d States v. See United ance. (“Another (D.C.Cir.1973) infer- “While the district court’s instruction change appearance from a ence available previously improper, this circuit has appear called to by someone who has been inappropriate held ‘consciousness is, change simply, that the re- lineup in a guilt’ may amount harm instruction and fear of flects an awareness Wagner, error.” less identification.”). this kind of inde- Without (9th Cir.1987) (citing Feld evidence, there is no basis for the pendent ). Feldman, man we concluded that the infer that the defendant trier of fact to erroneously district court instructed the any ever evinced sitting in the courtroom fact that the jury that it could consider the guilt. consciousness prior shaved off his beard defendant appearance A instruction guilt. of consciousness of trial as evidence justified when there is evidence show- the record demonstrated that Because changed ing only that the have robber Feldman shaved his nine months af beard appearance or that the robber and the arrest, request of his ter his and at the defendant at the time of his arrest her,” please “to the lack of mother instances, appearances. In these different immediacy rendered of Feldman’s behavior in order to decide that the defendant support in chain of inferences to the the necessary changed appearance, his it is to Feldman, 788 “pitifully struction weak.” in decide that the defendant is fact the F.2d at & n. 14. Yet we concluded that 555 Any inference of consciousness of robber. in “it is that the instruction inconceivable guilt unnecessary the is therefore because trial, given the the outcome of the fluenced already concluded the defendant is jury has highly probative search and identification perpetrator. the against the defendant. evidence” Id. case, showing there is no evidence this in- Despite inappropriateness the of the changed appearance. that Perkins his case, any er- struction in this we conclude the surveillance show First, in order for the ror was harmless. robber had a thick moustache and witness any significance to have attached to pho- Alamond testified that the man Chris already appearance, the pictures tographed in the bank surveillance the would have concluded that defendant leaving the man he saw the was same Additionally, was the robber. the con- bank, he recall facial but that “didn’t flows guilt sciousness of inference which provides support merely hair.” This for any change appearance was an the robber the inference already inference which the wearing disguise, been not that Perkins Moreover, exculpatory false draw from Perkins’s changed his concerning ownership his of the booking photograph fact shows statements ” denied, 1036, (5th Cir.1977), charged charged.’ 1049 cert. to actual of the crime 147, Silverman, United States v. 861 F.2d 439 U.S. (9th (1978)). 1988) (quoting Myers, Cir. Brown, Parole Permitting Defendant’s V. States v. Datsun. blue Cf. Cir.1978) Testify Officer to (per cu riam) (no where one reversible error The district court denied Perkins’s boilerplate instruction example flight in pa testimony of his motion to exclude the case). More supported by the facts of officer, government role but ordered over, present government the evidence occupation. identify the officer’s Perkins Alamond identified ed showed that Despite government fact that the never running from the bank he saw as man testify, parole called the officer to Perkins Datsun; police getting in a blue government argues that the fact that parking citation issued found in the bank a “adversely right to do so dictated registered to the blue Datsun which strategy, particular, in the defendant’s trial Perkins, for delinquent found a notice taking According the choice of stand.” apartment; Perkins the ticket in Perkins’s Perkins, this was “tantamount to com he ownership of the car when lied about his self-incrimination,” pelled because place actually drove the blue Datsun take the stand in order to would have to keys and had the where he was arrested “preemptively raise the fact that he was on showing pocket, his con that car rul- parole_” We find no error police guilt; and the found sciousness ing. apartment a rust-colored 1970’s Perkins’s First, parole officer can be called to matching style and maroon briefcase suit profession testify occupation when robbery.5 These consid those used relationship are not al with the defendant erations, together, taken convince us be Lang mentioned. v. See United States doubt that the instruc yond a reasonable (9th Cir.1986) ford, 802 F.2d tion did not affect the verdict.6 identify (parole officer called to the defen person dant as the in bank surveillance IV. Refusal to Allow Defense photographs), Testify Counsel (1987); L.Ed.2d 740 challenges district Butcher, court’s decision not to allow defense coun (9th Cir.1977)(police parole officer respond sel to take the stand and to testi proper). of defendant Even identification mony concerning Perkins’s out of court so, parole never called the allegedly fitting of the suit used officer; any complaint must therefore rest robbery. properly pre This issue was not theory. on the “self-incrimination” appeal served for as the defense failed to privilege against adequate proof. make an offer of Defense The fifth amendment stated, applies, example, “I am merely counsel anxious to self-incrimination Agent prosecution take the Fields’s testi comments on a defendant’s stand about mony.” testify, California, He did not indicate what his testi failure to v. Griffin be, 1229, 1233, mony would nor did he make the sub 380 U.S. 85 S.Ct. (1965), police cus- stance of the evidence known court. L.Ed.2d 106 and coercive Arizona, interrogation, Perkins cannot now claim error on this todial Miranda v. 1602, 103(a)(2). 436, ruling. 16 L.Ed.2d Fed.R.Evid. 86 S.Ct. relating speculation 5. The dissent on evidence believe that about McGee's com- focuses to not McGee, rooming plicity in the crime raises a reasonable doubt. Harold a boarder house as Perkins. While the dissent characteriz- Perkins, having McGee a "slim es as build” like out, post 6. As the dissent at 1407 n. it arresting there was that one of the evidence always scrutiny applies not clear what level of report prepared in a officers wrote the time See, e.g., to erroneous instructions. the Valle-Valdez, execution of search warrant (9th States v. Cir.1977). 554 F.2d 914-17 weighed pounds. However, McGee over Perkins’s because we hold the error testimony weight doubt, own conceded McGee's beyond harmless a reasonable we need up went and down and that he looked "real bad” not decide whether this is or not of a error arrest, though precise on the date of the Perkins could constitutional nature or the level of weight. scrutiny applies. not recall the exact We do error therefore harmless With information about the (1966), subjective were taken. a defendant’s own height, weight, general proper what constitutes a tri- perception participants’ effectively ques- made a tactical strategy. appearance, al The defendant Perkins could Moreover, testify light of all the circum- decision to tion the witness. part this strate- credibility

stances of the case. As fully along evaluate Alamond’s examination, gy, direct defendant chose why explanation with his he selected the and his testify parole to as to his status The take defendant. could also note prior The district court did not offenses. prosecution fact that the failed to of the giving government permission err in identify have Alamond the defendant parole court, call the officer. pointed out in as the defense its Therefore, closing argument. Perkins had Testimony Lineup VI. Identification opportunity confront Alamond at ample trial information at his dis- Lineup Photograph A. Failure to Produce posal effectively cross-examine him district Perkins contends that the lineup identification. The district about Alamond to allowing court erred in Chris court did not abuse its discretion in allow- testify lineup identification of about ing testify Alamond to and the failure to film, defendant. As a result of defective produce lineup photo did not violate produce an actu could not right Perkins’s of confrontation. However, lineup. as photograph al substitute, government provided the Photospread B. Cross-Examination of Of- defense with individual of the ficer identifi participants. Because Alamond’s During the cross-examination of height to an extent on the cation rested photospread the officer who conducted the participants, argues of the build identification, inquired into photographic defense that the absence of a record potential suggestiveness photo identifi deprived right him lineup of the of the attempted cations. Defense counsel then key confront and cross-examine witness. inquire concept “photo into the in right Whether Perkins’s of confrontation identification,” duced the court sus was violated is reviewed de novo. United government’s objection tained the McConney, States v. (9th ruling Cir.) (en banc), questioning. Perkins cites this as U.S. (1984). as to error. district court’s decision 83 L.Ed.2d 46 scope of cross-examination is reviewed principal complaint Perkins’s is that he for an abuse of discretion. United States adequately could not cross-examine Ala- Cir.1988), Bonanno, mug photos mond because “the shot used denied, 488 rt. ce 812, replace lineup photo capa were not height body comparison.” of a ble or build stated, however, Supreme Court has The district court did not abuse its discre- guarantees that “the restricting Confrontation Clause tion in the cross-examination of First, ‘an opportunity questions for effective cross-ex this witness. extended amination, beyond expertise, cross-examination that is ef the witness’s area of way, fective in whatever and to presentation photosp- whatever which was in the ” extent, Second, court, the defense wish.’ reads. Ken the district before Stincer, 730, 739, trial, tucky v. 482 U.S. properly expert refused to allow testi- 2658, 2664, (1987) topic S.Ct. 96 L.Ed.2d 631 mony on the of induced identification. (quoting Fensterer, Delaware v. 474 U.S. See Christophe, 292, 294, (9th Cir.1987) (“Skillful 88 L.Ed.2d 15 1299-1300 (1985))(emphasis case, original). In eyewitnesses, coupled this cross examination of opportunity Perkins had an appeals for effective with experience common and photo cross-examination. The individual jurors, sufficiently ju- sense of will alert graphs participant’s height list the specific and rors to conditions that render a weight, as well as the date particular the eyewitness identification unrelia- proper ruling by when the conviction serves

ble.”)- evade this Perkins cannot purpose, such as when the testimony impeachment from attempting expert to elicit ample opportu- testimony credibility and are defendant’s non-expert. Perkins 762-63; to, did, on at cross-examine Alamond central to the case. See id. nity and identification, Oaxaca, ar- as well as eyewitness States v. his Cir.), denied, theory (9th of induced identi- gue the cert. 439 U.S. (1978). fication. 58 L.Ed.2d 319 S.Ct. case, credibility In this defendant’s Robbery Conviction VII. Prior case, Per- testimony were central to the as finally contends that kins took the stand and testified that he did denying motion to district court erred robbery. We therefore con- not commit under Fed.R.Evid. introduction preclude court did not abuse clude that the district robbery conviction. prior 609 of his bank denying Perkins’s motion its discretion prior con that because Perkins claims government asking preclude charged crime as viction is for the same prior him his recent conviction for about offense, strong likelihood there is robbery, bank which admitted consider evidence as would examination, painting complete direct de The district court’s character evidence. picture as a of Perkins’s trustworthiness admit this evidence reviewed cision to witness. of discretion. United States abuse Cir.1987), Browne, VIII. Conclusion We conclude that the district court did evidentiary rulings. not err in of its 609(a)(1) the introduction of Rule allows exculpatory While the instruction on false felony impeach prior convictions proper, statements was the record does not if credibility of a witness the court deter- support change ap- the instruction on probative admitting value of mines that the However, pearance. this error was harm- prejudicial outweighs this evidence its ef- less, as it could not have affected the ver- Browne, fect to the defendant. where affirm Perkins’s convic- dict. We therefore Perkins’s, similar to we considered a claim tion. we reiterated five factors which should be AFFIRMED. balancing: performing considered in (1) prior impeachment value O’SCANNLAIN, Judge, Circuit crime; (2) point in time of the convic- dissenting: tion; (3) similarity past between eight indepen Ernest Perkins has raised offense; (4) charged crime and the the im- robbery challenges dent to his bank convic portance testimony; of the defendant’s rejects eight The court all af tion. (5) centrality of the defendant’s credi- firms the conviction. I concur in the Browne, bility. 829 F.2d at 762-63. one; analysis respects court’s in all I There, here, except as all of the factors persuaded am not that the district court’s prior charged similarity of the of- instruction, change-of-appearance which admissibility. fense counseled in favor of everyone but the concedes was if specifically We therefore noted that “a improper,1 constituted harmless error be proper robbery bank conviction serves a yond a I reasonable doubt. therefore must it, impeachment purpose, like evidence of dissent. crimes, may spite other be admissible similarity its to the offense issue.” Id. I Accordingly, at 763. the admission under properly The court has identified the robbery Rule 609 of a conviction in a bank “A problem: appearance trial is an abuse of discre- instruc- 544, (9th Cir.1986), F.2d 1. "We review a district court’s decision to sub- 788 555 1067, 955, change-of-appearance] mit 479 U.S. 107 S.Ct. 93 L.Ed.2d 1003 [a instruction! 1 Feldman, abuse of discretion." United States v.

1407 II independent evi- contemplates some him- indicating that the dence by the defendant the rule articulated Su Under actually changed his preme Chapman California, Court self Here, (emphasis original). at 1403 Ante 18, 824, 87 S.Ct. 17 L.Ed.2d 705 independent evidence. such there is no (1967), striking an error at the fundamental demonstrate bank surveillance fairness of a criminal trial be deemed robber, during the commission that the only if “the court able to harmless [is] crime, thick moustache. A long, the had a that it harmless declare a belief be dem- photograph yond Chapman, of the defendant a reasonable doubt.” 386 distinct 24, he, U.S. at 87 S.Ct. at 828.2 The benefi at the time of his book- onstrates that ciary of the constitutional error bears the growth only slight amount of ing, had proving burden of that “the error com themselves, these two sets lip. By over his plained of did not contribute to the verdict inference; images meaningful no offer court, I obtained.” Id. Unlike the am not together. The nothing to tie them there is convinced that the trial court’s erroneous justified a missing link that would have beyond a instruction was harmless reason would be change-of-appearance instruction doubt, persuaded I able am not that photograph of Perkins before prov government has met its burden of trial) demonstrating (or least, at before ing otherwise. robber, too, had a formerly like the that he would Only then long, thick moustache. The court bases its conclusion on two change in the de- a demonstrable First, there be the court contends observations. which one appearance from fendant’s to have at- that order for “[i]n might fairly any change ap- infer a consciousness significance tached ultimately that Perkins jury already and thus conclude would have pearance, the [to the same man. As it and the robber are concluded that the defendant was have] was, only According two of the at to this robber.” Ante harmless be- snapshots reasoning, it needed to warrant the instruction was three all-important logical jury would have had no challenged instruction: cause a connecting pho- the bank exist or is rational basis for picture “before” either does not booking photograph in tographs with the inexplicably from the record. absent applied Supreme recognize Court cases that have three levels of harmless- ous rule); 2. We least 586-89, (Ste 106 S.Ct. at 3110-12 id. at scrutiny gen context. See error in the criminal vens, J., (suggesting concurring) er that some Valle-Valdez, erally 911, they implicate per se because First, rors are harmful principles beyond (9th Cir.1977). when the er 914-17 and affect the immediate case dimension, we will a constitutional ror is not of accuracy reliability values other than probable it is than deem it harmless if "more verdict). that the verdict would have been not” Judge pointed Wallace out for this As Chief error. United States v. Echavar without the See Valle-Valdez, always clear it is not court ria-Olarte, 1391, Cir.1990). scrutiny apply to an erro level of should what Second, error is constitutional when the Valle-Valdez, instruction. See neous nature, apply Chapman rule we will (citing Ninth Circuit cases F.2d at 916-17 if, if, it is clear that deem it harmless tests). applied the first and the second both beyond a reasonable the error was harmless apply Chapman majority has elected to Arsdall, See, e.g., v. Van doubt. Delaware rule, scrutiny, level the intermediate (1986); 106 S.Ct. U.S. change-of-appearance here. instruction at issue Clark, Rose v. represents appropri agree Chapman I 576-77, (1986); also id. at L.Ed.2d 460 see present because the error in ate standard (describing Supreme S.Ct. at 3105 numerous impli prejudicial quality instruction has applied Chapman Court cases that have infra; process See see also cates due concerns. rule). 576-84, Rose, 106 S.Ct. at 478 U.S. at Finally, when the error is constitutional improp Chapman (applying rule to an 3105-09 right implicates Feldman, instruction); and it a "structural” so nature 788 F.2d at 555— er definition, that, by improper it can basic to a fair trial (applying Chapman rule to an 56 change-of-appearance harmless, instruction). we deem the error never be will I therefore standard; Chapman, majority’s I per agree U.S. at 23 & harmful se. See with the choice 8; Rose, disagree under that stan & n. 478 U.S. at with its conclusions n. 577-80, 87 S.Ct. at 823 (describing numer- dard. 106 S.Ct. at 3105-07 trial, perfect Ei- fendant to a fair not a one.” order to infer a jury already Arsdall, had concluded that at ther the 106 S.Ct. at Van man, (citations omitted). images depicted the same or both link,” “missing they simply dis- absent the however, I that agree, govern- cannot regarded the instruction as nonsensical. in ment’s evidence this case is overwhelm- however, reasoning, merely This as ing. support In of its conclusion to Presumably, away problem. sumes contrary, following: recites the the court ehange-of-appearance instruction was eye-witness] Alamond identified Per- [an abundantly it necessary because was not running kins as the man he saw from the pictures depicted the clear that both sets of Datsun; getting in a bank and blue purpose change-of-ap of a same man. The police parking found in the cita- is, all, pearance guide instruction after tion issued to the blue Datsun which was jury’s consideration of circumstantial Perkins, registered to and found a delin- may help identify evidence that the de quent notice for the ticket Perkins’s criminal; if fendant as the direct evidence apartment; Perkins lied about his owner- criminal, already sufficiently identifies the ship actually of the car when he drove prosecution then the no need such has place the blue Datsun to the where he Indeed, instruction. this case the keys was arrested and had the to that (and attempt apparent did not pocket, showing car his conscious- unable) ly was to make an in-court identific guilt; police ness of and the found ation.3 apartment Perkins’s a rust-colored 1970’s Moreover, the fact that the instruction style matching suit and maroon briefcase picture makes no sense without of what robbery. those used in the Perkins looked like before the does pow- Ante at 1404. The defense has raised suggest jury ignored it or challenges erful to all of this evidence. placed upon precisely no value it. It is support when reason giving does all, interview, police First of his initial instruction that consideration of that Chris Alamond described the Datsun he may prove prejudicial. logi- instruction A brown, discrepancy saw as not blue—a cal might well have assumed that the upon accuracy casts considerable doubt trial given illogical court would not have it of his He also observation. described the directions, concluding thus that the court fugitive having whom he saw as no facial at least missing was satisfied that the link hair—a upon fact that casts further doubt supplied. way, been In this or, perhaps, suggests his identification prejudiced literally “pre- have been — the man whom he saw was not the robber. judged” by the trial court. Alamond, — moreover, identify did not Per- fact, kins as the Second, open robber in court. the court concludes that the evi he admitted at trial that his observation dence of Perkins’s was overwhelming. permit was insufficient to such an identifi- Ordinarily, when there is overwhelming ev positively identify cation. Alamond did guilt, idence of there can be no reasonable Perkins sometime See, po- doubt that the error was before trial in a live harmless. lineup, e.g., Harrington California, lice but even that identification is 250, 254, questionable. time, At 23 L.Ed.2d Alamond con- (1969); Rose, 478 U.S. at ceded that he was “not sure” about his C.J., (Burger, concurring); Echa identification the man because he observed varria-Olarte, 904 F.2d at 1398-99. had been both on the run and across the Furthermore, Constitution entitles a criminal de- street. days prior two “[T]he Purmont, ticipant 3. Linda standing immediately the bank teller whom the rob- who was beside confronted, directly initially ber police told the time, the defendant as the robber. At the she ability identify that she was confident in her recognized said that she this man as the robber presented opportunity. the robber if At a "the moment that he came in” and that she crime, police lineup days live however, seven after the "knew it was him.” positively par- she identified a random out, of McGee was a resident pho- fense police examined had lineup, Alamond to rooming of house and had access picture the same described had tospread and might man he also One reason- being “similar” Perkins’s room. as however, only Perkins, Perkins, was the if he seen; ably wonder was whether had photospread robber, to both have been common would careless person actual lineup. subsequent dropped parking cita- enough to have kept and to have on the floor cited remaining evidence all the Nearly in his closet. incriminating clothes car and getaway relates by the court defense, Perkins.4 The is, connection its speculations of purpose of these for however, explanation an has offered course, suspicion upon Mr. not cast that, convincing, is at if not this connection McGee, may presume to we whom less evidence to render this sufficient least usurp I mean to Nor do model citizen. “overwhelming” implication in its than weigh jury, who alone must function of the Duckworth, Dudley v. guilt. See Rather, I competing of the evidence. views Cir.1988) (error harmless single suggest that no view mean “impressive guilt was where evidence A overwhelming. the evidence here denied, overwhelming”), but not persists over whether reasonable doubt 104 L.Ed.2d admittedly im- in an prejudicial inference sold the that he (1989). Perkins contends tipped the may have proper instruction rooming at his a fellow boarder car to I sim- of considerations. delicate balance that he house, He admits McGee. Harold a doubt that ply cannot without conclude “periodic access” to have continued in- change-of-appearance erroneous paying had not finished McGee car because to the verdict. did not contribute struction also used it, that McGee he insists vacate the conviction I would therefore driver and that McGee the vehicle new trial. this case for a and remand robbery. Perkins further day on the McGee, whom Perkins insists house, halfway days at a known from his deceptively similar to Perkins

looks descrip closely fits the witnesses’ more Perkins, Like McGee the robber. tions of GREYSON, George Malcolm complexion, slim has a medium allegedly Petitioner-Appellant, Moreover, build, short-cropped hair. 10", height as the 5' McGee is Purmont, Administrator, Linda KELLAM, Acting the estimation of robber in E. John Center; view. teller who had the closest Community the bank Correctional Oahu 5V2", hand, Perkins, an Director, the other is 5' Falk, Department on Harold Hawaii, than Purmont herself. inch Corrections, Respon shorter State dents-Appellees. crime, may he did commit If McGee parking citation dropped well have 90-16165. No. implicate effort floor the bank Appeals, Court attention himself. Perkins and divert Ninth Circuit. felon, Indeed, calculating he if were a he car with purchased Perkins’s May have 1991. Argued and Submitted mind, intending never scheme whole July 1991. Decided registration toor the vehicle’s may ownership. He also assert exclusive during the clothes worn planted closet. the de-

robbery in Perkins’s As however, properly be such statements Perkins’s false excul- also mentions The court They guilt. are overwhelming regarded evidence of as part direct patory statement as evidence of a conscious- best circumstantial guilt. As the court concedes evidence of guilt. at 1402. explains, See ante ness of of this issue as its discussion earlier

Case Details

Case Name: United States v. Ernest James Perkins

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jul 1, 1991

Citation: 937 F.2d 1397

Docket Number: 88-5237

Court Abbreviation: 9th Cir.