799 F. 2d 751 - United States v. Malone

In a prior appeal, we remanded this case to the district court with instructions to make certain factual findings necessary to resolve Bryant's fourth amendment claim. On remand, the district court found that the four masks the government introduced at trial had been unconstitutionally seized from Bryant--a finding the government does not contest--but that their admission was not prejudicial under the standard of harmless error articulated in Chapman v. California, 386 U.S. 18 (1967). Bryant appeals, attacking this finding, but since we think that the district court reached the correct conclusion, we affirm.

Witnesses of the bank robbery stated that the robbers wore masks of the sort found in Bryant's home, and the illegally seized masks were admitted into evidence. However, there was other overwhelming evidence of Bryant's guilt, so that the erroneous admission of the masks was harmless beyond a reasonable doubt. Two witnesses, the girlfriends of two of the participants in the bank robbery other than Bryant, testified to Bryant's actions and statements in planning and preparing for the robbery, and in subsequently recounting its execution. Though Bryant sought to impeach the witnesses based on their plea agreements with the government, their testimony about Bryant's statements in planning and later describing the robbery were thoroughly and convincingly corroborated by the testimony of bank tellers and other innocent observers as to the actual course of the rob bery. Besides the detailed corroboration of the two witnesses' testimony, the prosecution introduced evidence that Bryant was closely associated with the other bank robbery participants including one who was identified by two tellers, that one robber mentioned Bryant's first name "Tom" in talking to his masked accomplice, and that the stolen car used after the robbers, abandoned their "getaway" vehicle was found in the parking lot of Bryant's apartment building one month after the robbery. In an extended closing argument, the prosecution made only one reference to the illegally seized masks as physical evidence of guilt.

On this record, we think it abundantly clear that the admission of the masks was harmless beyond a reasonable doubt.

In the prior appeal, Bryant and his codefendant John R. Malone raised two additional grounds for reversal: that the district court improperly foreclosed an inquiry into certain prior acts of the prosecution's key witness, and that the district court wrongly denied Malone's request to sit at the defense counsel's table during jury selection and trial. We did not find it necessary to resolve these questions during the initial appeal, and though neither defendant presses them in the present appeal, we nevertheless consider and reject them on the merits.

We think that the district court acted well within its dis cretion in denying the defendants the right to inquire into the witness' prior acts of prostitution and lesbianism during cross-examination, because these acts were neither probative of her truthfulness or untruthfulness, nor had they resulted in any conviction punishable by imprisonment of more than one year. See Fed. R. Evid. 608, 609.

Further, the district court permitted the three defendants to be present during jury selection and trial, and merely required Malone, like the other two defendants, to sit directly behind his defense attorney rather than sit at the defense table with the attorneys. This seating arrangement in no way impaired Malone's right to be present at jury selection and trial, nor did it prevent him from effectively communicating with his attorney during the proceedings.

We therefore conclude that there was no reversible error in either of these disputed matters.

AFFIRMED.