931 F2d 898 United States v. Hall

931 F.2d 898

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

UNITED STATES of America, Plaintiff-Appellee,
v.
Frank Leslie HALL, Defendant-Appellant.

No. 90-50137.

United States Court of Appeals, Ninth Circuit.

Submitted March 4, 1991.*
Decided May 6, 1991.

Before PREGERSON, CYNTHIA HOLCOMB HALL and BRUNETTI, Circuit Judges.


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1

MEMORANDUM**

2

A district court found Frank Hall guilty of three counts of armed robbery and two counts of unarmed robbery under 18 U.S.C. Secs. 924c, 2113(a), respectively. He challenges his conviction upon the district court's (1) determination of reasonable suspicion to stop, (2) failure to excuse a juror for cause (3) admission into evidence of a toy gun, and (4) order compelling defendant to wear his hat and glasses. Defendant also challenges his 140-month sentence, contending that the district erred in failing to reduce his sentence for acceptance of responsibility. We affirm.

I. REASONABLE SUSPICION TO STOP

3

This court reviews de novo a district court's determination of reasonable suspicion to stop, United States v. Sutton, 794 F.2d 1415, 1426 (9th Cir.1986), but reviews for clear error the underlying factual determinations. United States v. McConney, 728 F.2d 1195, 1200-01 (9th Cir.) (en banc), cert. denied, 469 U.S. 824 (1984).

4

Police officers may make a brief investigatory stop of a moving vehicle, provided they are aware of specific and articulable facts leading to founded or reasonable suspicion that the person has been or is about to be involved in a crime. United States v. Hensley, 469 U.S. 221 (1985); Terry v. Ohio, 392 U.S. 1 (1968). In evaluating reasonable suspicion, courts consider the totality of circumstances. United States v. Cortez, 449 U.S. 411, 417 (1981).

5

In the present case, specific articulable facts supported the stop of defendant's vehicle. Officer Halford saw defendant's car leaving the bank parking lot moments after police radio reported the robbery. In addition, Officer Halford noted that defendant, an older white male wearing glasses and a baseball cap, matched the description broadcast by police radio. The district found that the totality of circumstances justified a Terry stop. We agree.1

6

II. DISTRICT COURT'S REFUSAL TO REMOVE JUROR FOR CAUSE

7

Defendant maintains that juror Coulton warranted a dismissal for cause because of his bias in favor of law enforcement witnesses.


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8

Rulings on challenges for cause are reversed only for abuse of discretion. United States v. Brooklier, 685 F.2d 1208, 1223 (9th Cir.1982) (citing Dennis v. United States, 339 U.S. 162, 168 (1949)), cert. denied 459 U.S. 1206 (1983). In Bashor v. Risley, 730 F.2d 1228, 1236-37 (9th Cir.), cert. denied 469 U.S. 838 (1984), this court ruled that a district court does not abuse its discretion in denying a challenge for cause when a juror affirmatively states she can decide a case impartially.

9

During voir dire questioning, Coulton revealed his law enforcement connections. His brother was a highway patrol officer and his cousin was a correctional officer. At the time, Coulton himself had applied for a position as a highway patrol officer. When asked by the court if he could evaluate testimony by law enforcement officers fairly, Coulton paused and then answered "yes". The trial judge found that the juror properly considered the question of potential bias and concluded he could be fair. Given Bashor, we find that the trial judge did not abuse his discretion.

10

III. THE ADMISSION OF THE TOY GUN INTO EVIDENCE

11

Defendant contends that the trial judge improperly admitted the toy gun as evidence. Defendant argues that the trial judge abused his discretion in finding the gun relevant. If relevant, defendant argues in the alternative that the toy gun's admission was unduly prejudicial.

12

Evidentiary rulings are reversed only for abuse for discretion. United States v. Ford, 632 F.2d 1354, 1377 (9th Cir.1980), cert. denied, 450 U.S. 934 (1981).

A. The Relevance of the Toy Gun

13

Evidence is relevant if it makes it more likely than before its admission that a defendant committed the crime in question. New Jersey v. T.L.O, 469 U.S. 325 (1985).

14

Defendant contends that the toy gun is irrelevant to his bank robbery charges. Defendant's contention fails. During each of the five robberies, defendant said he had a gun. Tellers from the first three robberies testified that they saw an object which defendant identified as a gun. In the fifth and final robbery, teller Gloria Hwang testified that defendant told her to look at a dark object which he claimed was a gun. Immediately after the robbery, when police arrested defendant, they found the toy gun in his car.

15

The trial court found the toy gun relevant because it makes defendant's final bank robbery, if not all five bank robberies, more probable than it had been before the toy gun's admission. The district court clearly did not abuse its discretion.

B. Unfair Prejudice Issue

16

Defendant contends that the toy gun, if relevant, should have been excluded because of unfair prejudice.

17

Under Fed.R.Evid. 403, a district court may exclude relevant evidence only if the danger of unfair prejudice substantially outweighs its probative value. Rule 403 is limited to excluding evidence of "scant or cummulative probative value dragged in by the heels for the sake of its prejudicial value." United States v. McRae, 593 F.2d 700 (5th Cir.) cert. denied (1979). "All evidence which tends to establish the guilt of a defendant is, in one sense, prejudicial to the defendant, but that does not mean that such evidence should be excluded." United States v. Bailleaux, 685 F.2d 1105, 1111 (9th Cir.1981).

18

In this case, the toy gun was highly probative. The district court found that the toy gun's prejudicial value did not substantially outweigh its probative value. The district court did not abuse its discretion.

19

IV. THE TRIAL JUDGE'S ORDER COMPELLING DEFENDANT TO WEAR HAT AND GLASSES BEFORE THE JURY

20

Defendant contends that the court order commanding him to wear a hat and glasses before the jury violated his due process rights for two reasons. First, defendant maintains that the government did not give defendant ample notice that it would request such a demonstration. Second, defendant contends that such demonstrations are very uncommon.2

21

Defendant's first contention fails. The government's trial brief discussed the propriety of such a request and the government served the trial brief on defense counsel five days before trial.3

22

Second, contrary to defendant's contention, such demonstrations are not unusual in bank robbery trials. This court has consistently upheld them. See, e.g., United States v. Satterfield, 572 F.2d 687 (9th Cir.) (defendant compelled to wear stocking masks before jury in order to permit comparison to surveillance photographs) cert. denied, 439 U.S. 840 (1978).

23

V. DEFENDANT'S ACCEPTANCE OF RESPONSIBILITY CLAIM

24

Defendant contends that the district court erred in refusing to lower his offense level for acceptance of responsibility.

25

An acceptance of responsibility determination is a factual finding reviewed for clear error. United States v. Gonzalez, 897 F.2d 1018, 1019 (9th Cir.1990). To receive a two point reduction for acceptance of responsibility, section 3E1.1(a) of the Sentencing Guidelines requires that a defendant clearly demonstrate "a recognition and affirmative acceptance of personal responsibility for his criminal conduct." The defendant bears the burden for proving acceptance of responsibility. United States v. Howard, 894 F.2d 1085, 1089 (9th Cir.1990).

26

The district court found that defendant did not accept personal responsibility for his acts. Defendant, in his Presentencing Letter to the District Court, shows remorse but fails to accept personal responsibility for his crimes. Instead, he blames society for putting him in a position that forced him to commit his crimes. We affirm the district court's determination because we can not say that the district court clearly erred.

27

Lastly, defendant challenges the constitutionality of Sentencing Reform Act of 1984 on due process grounds. Defendant, however, concedes that this court has already upheld the act. United State v. Brady, 895 F.2d 538 (9th Cir.1990). Nonetheless, defendant raises this issue on appeal to preserve it for possible Supreme Court review.

28

AFFIRMED.

*

The panel unanimously found this case suitable for decision without oral argument. Fed.R.App.P. 34(a) and Ninth Circuit Rule 34-4

**

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

1

Defendant contends that Officer Halford intended to arrest defendant rather than conduct an investigative search, and that the officer lacked probable cause to arrest him. Defendant's contention, however, is unsupported by the record. Moreover, it is difficult to fathom a rule of law which would permit a suspect to flee police on the claim that the police intended to arrest rather than merely conduct a Terry stop

2

Defendant concedes that such demonstrations do not violate any fifth amendment right against self-incrimination. Holt v. United States, 218 U.S. 245 (1910)

3

This court has not considered the issue whether a defendant who is compelled to wear distinctive clothing before the jury must receive notice of it. The Eighth Circuit, however, rejected the argument that such requests unfairly surprise defendants. See United States v. Love, 692 F.2d 1147, 1152 (8th Cir.1980). In any case, we need not reach this issue because in the instant case, defendant received notice