UNITED STATES of America, Plaintiff-Appellee, v. George Allen WILSON, Defendant-Appellant.
No. 74-2523
United States Court of Appeals, Ninth Circuit
June 7, 1976
536 F.2d 883
Irving Hill, District Judge for the Central District of Califоrnia, sitting by designation, concurred specially and filed an opinion.
David B. Rosenthal (argued), of Ramsy & Rosenthal, Richmond, Cal., for defendant-appellant.
Jerry K. Cimmet, Asst. U. S. Atty. (argued), San Francisco, Cal., for plaintiff-appellee.
Before KOELSCH and HUFSTEDLER, Circuit Judges, and HILL,* District Judge.
HUFSTEDLER, Circuit Judge:
Wilson appeals from his conviction for bank robbery. Wilson contends that the district court erred in denying his motion to suppress items obtained from a warrantless search of Willis‘s suitcase, in rulings on several evidentiary matters, and in instructing thе jury on circumstantial evidence.
The day before the robbery Wilson, his codefendant Murray, Taylor and Willis left Los Angeles and spent the evening together in the apartment of Sharon MсKee in Oakland. Wilson and Taylor thereafter spent the night in a motel, while Murray and Willis remained all night in McKee‘s apartment. Wilson, Murray, and Willis each left a suitcase at the apartment.
At approximately 10:20 the next morning, three armed men wearing ski masks robbed the bank. Immediately afterward, a police officer saw a man wearing a ski mask and surgical gloves hurriedly enter a car that was waiting in front of the bank with a driver inside and the motor running. The car drove away rapidly amid gunfire from other police officers in pursuit. The officer then saw Murray walking quiсkly from the direction of the bank with money protruding from his waistband. He was trying to remove a surgical glove from his hand. The officer arrested Murray. The money in Murray‘s waistband turned out to be bait monеy from the bank. A ski mask and a revolver were discovered near the place of the arrest. The fleeing car crashed soon after it left the vicinity of the bank. Two men were sеen running from the wreck, one in the direction of a shed where Wilson was soon found and arrested. The wrecked car had bullet holes in it and contained some of the money taken from the bank.
By early afternoon, the investigating officers learned that both Wilson and Murray had spent the previous evening at an Oakland apartment belonging to a “Sharon.” They identified “Shаron” as Sharon McKee and placed her apartment under surveillance. About 3:30 p. m., F.B.I. agents, with the consent of McKee but without a warrant, entered the apartment and found thе three suitcases. McKee told the agents that the suitcases were not hers and that they had been left by visitors the night before. At the agents’ direction, McKee opened one оf the suitcases (the one belonging to Willis); the agents themselves opened the other two. In Willis‘s suitcase the agents found wallets and identification papers belonging to Willis, Wilson, and Murray. These items were used to show that the three persons were associated with each other and that they sought to conceal their identification documents in case they wеre caught. Wilson moved to suppress the contents of the suitcases as the product of an illegal search. The district court rejected the motion on the ground that McKee validly consented to the suitcase searches.
Although McKee could effectively consent to the agents’ search of her apartment, she had neither actual nor apparent
Wilson had standing to challenge the search of his own suitcase, but the evidence that he sought to suppress was found during the search of Willis‘s suitcase. He has standing to attack the search of Willis‘s suitcase only if he had a reasonable expectation of privacy with respect to that case. His expectation perhaps could be implied if he had entrusted his belongings to Willis for storage in Willis‘s bag. (See Mancusi v. De Forte (1968) 392 U.S. 364, 368-70, 88 S.Ct. 2120, 20 L.Ed.2d 1154; cf. Jones v. United States (1960) 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697). From the evidence concerning Willis‘s associаtion with Wilson and the finding of Wilson‘s packet of papers in Willis‘s suitcase, an inference can be drawn that Wilson gave these items to Willis for storage in the latter‘s suitcase. However, thаt inference is dispelled by Wilson‘s own testimony in which he said that these items were in his own bag when he left McKee‘s apartment. He offered no explanation for the presencе of his belongings in Willis‘s suitcase. Under these circumstances, he is in no position to claim any expectation of privacy in Willis‘s suitcase. Because he lacked standing to challеnge that search, the error on the consent issue was harmless.
Wilson also argues that the court abused its discretion in admitting evidence of his prior felony convictions in 1969 for recеiving stolen property and in 1971 for attempted robbery. Evidence of the convictions was admitted for the purpose of impeaching Wilson‘s credibility. He contends that the conviсtions were too remote to be probative and that they were sufficiently similar to the charged crime as to be unduly prejudicial.1 Both arguments are foreclosed by our decision in United States v. Hatcher (9th Cir. 1974) 496 F.2d 529. In Hatcher we found no abuse of discretion when the district сourt admitted evidence of three prior convictions for the same kind of crime, at least one of which was substantially more remote than Wilson‘s earliest conviction. (Seе also United States v. Falco (9th Cir. 1973) 478 F.2d 1376, 1378 (similar crime); United States v. Stroud (9th Cir. 1973) 474 F.2d 737, 739 (seven-year-old conviction); cf.
Second, he argues that the trial court erred in refusing to give a рroffered jury instruction about the special pitfalls of circumstantial evidence. The refusal was proper; rejection of instructions like the one proposed has bеen affirmed by this court many times. (See, e. g., United States v. Heck (9th Cir. 1974) 499 F.2d 778, 790; United States v. Ellsworth (9th Cir. 1973) 481 F.2d 864, 872.)
Finally, Wilson claims error in permitting the cross-examiner to ask him about his knowledge of Willis‘s prior conviction for murder and Taylor‘s prior conviction for manslaughter. Wilson testified that he was unaware of his companions’ plan to rob a bank, and he gave an elaborate, unconvincing explanation for his involvement with Willis and his рresence near the automobile crash. The gist of his story was that Willis had promised him $500 to pick up an attache case from a man he was to meet at a
When a defendant claims that he did not know of his companions’ disposition to commit the crime charged, evidence of his knowledge that they had been convicted of previous similar crimes is рrobative. That evidence does not suggest merely a general “criminal disposition“; it shows a willingness to take the risks of engaging in that particular kind of criminal enterprise. (See, e. g., Asher v. United States (9th Cir. 1968) 394 F.2d 424, 429; cf.
Affirmed.
IRVING HILL, District Judge (specially concurring):
I concur in the result. I also concur in the opinion with the sole exceрtion of the portion which discusses the trial judge‘s admission of evidence of Wilson‘s knowledge of the prior criminal convictions of his companions. I agree that if the admission of this evidence was error, the error would not justify a reversal. But I disagree with the holding that the admission of such evidence was error. Under the facts of this case, I believe the admission of this evidence as part of the government‘s cross-examination, was within the trial court‘s discretion.
IRVING HILL
District Judge (specially concurring)