Andrew B. Baker, Jr., Asst. U.S. Atty., Dyer, Ind., for U.S.
Craig Chapman, pro se.
Anthony J. Valentine, Grand Rapids, Mich., for Jack E. Wright.
Fred R. Hains, South Bend, Ind., for Craig Chapman.
Before CUDAHY and RIPPLE, Circuit Judges, and ESCHBACH, Senior Circuit Judge.
RIPPLE, Circuit Judge.
Following jury trials, Craig Chapman and Jack E. Wright each were convicted of violating
18 U.S.C. 371 (conspiracy to commit armed bank robbery),
18 U.S.C. 2113(a), (d) (armed bank robbery), and
18 U.S.C. 924(c)(1) (use of a firearm during and in relation to a crime of violence). In this pre-Sentencing Guidelines case, each defendant was sentenced on the three counts to consecutive prison terms of five, fifteen, and five years. These twenty-five year sentences were to be concurrent to the defendants' related state sentences. In this consolidated appeal, Mr. Chapman challenges his judgment of conviction as well as his sentence, and Mr. Wright challenges his judgment of conviction. For the reasons set forth in this opinion, we affirm the judgments of the district court in all respects.
* BACKGROUND
A. Facts
In 1987, Mr. Chapman and Mr. Wright were airmen in the 305th Security Police Squadron at Grissom Air Force Base in Indiana. Their case involves the armed robbery of two federally insured banks. The first robbery occurred on May 29, 1987, when an armed man entered the Wabash Valley Bank and Trust Company in Denver, Indiana (Denver bank). The robber soon left with $14,620, including bait money. Although his face was partly hidden and he could not be identified, witnesses were able to recognize that he was black. Shortly before the robbery, witnesses had observed an automobile, driven by a white man with a black passenger, near the Denver bank. The description of that automobile matched that of one belonging to Mr. Chapman's mother. Mr. Chapman is black, and Mr. Wright is white.
Several days later, Thomas Pezet, a third member of the 305th Security Police, approached Mr. Chapman about the Denver bank robbery. Pezet had seen Chapman driving a car that matched the description of the getaway vehicle and had heard Mr. Chapman joke about robbing a bank. After Mr. Chapman admitted that he and another individual had robbed the Denver bank, Pezet confronted Mr. Wright about the robbery. Mr. Wright threatened to kill Pezet and his family if Pezet told anyone. With this threat in the background, Pezet later was induced to drive his own new pick-up truck as the getaway car for a second robbery.
That robbery occurred on July 3, 1987, at the First National Bank of Logansport in Twelve Mile, Indiana (Twelve Mile bank). Accompanied by Mr. Wright and Mr. Chapman, Pezet parked his gray Ford Ranger pick-up truck behind a fire station that is separated by an alley from the Twelve Mile bank. Mr. Wright and Mr. Chapman, both armed, robbed the bank of $7,246; once again, their booty included marked bait money. The pair fled to the waiting Ford Ranger and got into the back of the truck, which was covered by a cap. Pezet then drove out of town.
A short time later, Indiana State Police officers who had received a description of the getaway vehicle pulled over Pezet's truck heading south on U.S. Route 31. Officers discovered Mr. Wright and Mr. Chapman in the back of the truck; they were removed and arrested. The appellants were wearing clothes that matched the description of the Twelve Mile bank robbers. They had with them a bag containing $7,246, including the marked Twelve Mile bait money. Three bills with serial numbers matching the Denver bait money were later found at Mr. Wright's quarters.
On October 13, 1988, a federal grand jury handed down a five-count superseding indictment against Mr. Chapman and Mr. Wright. Count One charged both men with conspiracy to commit armed bank robbery, in violation of
18 U.S.C. 371. Count Two charged Mr. Wright with aiding and abetting the armed robbery of the Denver bank, in violation of
18 U.S.C. 2, 2113(a), (d). Count Three charged Mr. Wright with aiding and abetting the use of a dangerous weapon during and in relation to a crime of violence (the Denver bank robbery), in violation of
18 U.S.C. 2, 924(c)(1). The final two substantive counts charged Mr. Chapman with identical violations in relation to the Twelve Mile bank robbery.
II
ANALYSIS
A. Mr. Chapman's Appeal
1. Search and seizure
Prior to trial, Mr. Chapman filed a motion to suppress evidence, in which he challenged the search that was conducted at the time of his arrest following the Twelve Mile bank robbery. Indiana State Trooper David Fouts and Sergeant Carlos Pettiford stopped Pezet's Ford Ranger after they learned that the Twelve Mile bank had just been robbed and that a vehicle matching the description of Pezet's vehicle was the getaway car. The officers also had been notified that three men were involved and that two of them might be hiding in the rear of the truck. In addition, they had been alerted that a black revolver had been displayed during the robbery. When Trooper Fouts first attempted to stop Pezet, he refused to stop until forced to the side of the road by Sergeant Pettiford. The officers then confirmed that two men were hiding in the back of the truck. As Mr. Chapman and Mr. Wright were escorted out of the truck, Trooper Fouts observed in the back of the truck, in plain view, "what appeared to be the top of a money bag, a holster, and a dark ski mask." Magistrate's Report and Recommendation of Feb. 1, 1989 (R.12) at 5. Both men, as well as Pezet, then were handcuffed and advised of their rights. After the airmen had been handcuffed, Sergeant Pettiford found two handguns underneath the carpet at the front of the truck bed. He also opened the "money bag" or duffel bag and found that it contained money.
The magistrate concluded that the officers' reasonable suspicion ripened into probable cause to arrest Mr. Chapman and his colleagues because they attempted to evade capture, because two men were in the rear of the truck as reports had indicated, and because the duffel bag, ski mask, and holster were observed in plain view. Relying primarily on New York v. Belton,
453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), the magistrate further concluded that the search of the rear of the truck and of the duffel bag was a permissible search incident to the lawful arrest of Mr. Chapman. According to the magistrate, the search also was justified under United States v. Ross,
456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982), because the officers had probable cause to believe that the fruits and instrumentalities of the crime were to be found in the truck. The magistrate therefore recommended denial of Mr. Chapman's motion to suppress, and the district court denied his objections to the magistrate's recommendations on March 1, 1989.
In this appeal, Mr. Chapman repeats his contention that items seized at the time of his arrest on the highway following the Twelve Mile bank robbery should have been suppressed. Although he concedes that police had reasonable suspicion to stop the truck in which he was hiding, he contends that he was arrested without probable cause and that the search thus was not incident to a valid arrest. We thus must determine if his arrest was based on probable cause; furthermore, we must determine if the scope of the warrantless search was justified.
a. probable cause to arrest
When probable cause exists to believe that an individual has committed a felony, police may arrest the individual outside his home without an arrest warrant. See United States v. Watson,
423 U.S. 411, 423-24, 96 S.Ct. 820, 828, 46 L.Ed.2d 598 (1976). "Probable cause exists where 'the facts and circumstances within their (the officers') knowledge and of which they had reasonably trustworthy information (are) sufficient in themselves to warrant a man of reasonable caution in the belief that' an offense has been or is being committed." Brinegar v. United States,
338 U.S. 160, 175-76, 69 S.Ct. 1302, 1311, 93 L.Ed. 1879 (1949) (quoting Carroll v. United States,
267 U.S. 132, 162, 45 S.Ct. 280, 288, 69 L.Ed. 543 (1925)). As the Court noted in Brinegar, when courts attempt after the fact to distinguish between "mere suspicion and probable cause," the "line must necessarily be drawn by an act of judgment formed in the light of the particular situation and with account taken of all the circumstances." Id. 338 U.S. at 176, 69 S.Ct. at 1311. We review de novo the district court's legal determination that probable cause existed for the warrantless arrest, and apply the clearly erroneous standard to the district court's factual findings. See, e.g., United States v. Yakubu,
936 F.2d 936, 938 (7th Cir.1991) (per curiam); United States v. Sophie,
900 F.2d 1064, 1072 (7th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 124, 112 L.Ed.2d 92 (1990); United States v. Ingrao,
897 F.2d 860, 862 (7th Cir.1990).
Based on our independent review of the record, we agree with the conclusion of the magistrate, which was adopted by the district court, that the Indiana officers had probable cause to arrest Mr. Chapman. The officers knew that a bank robbery had just occurred and that the description of the getaway vehicle closely matched that of Pezet's new Ford Ranger. Pezet's initial refusal to stop his truck when the officers signalled him to pull over "reinforced the reasonableness of the officers' belief that [the driver] had committed or was committing a crime." United States v. McCarty,
862 F.2d 143, 147 (7th Cir.1988). Sergeant Pettiford's suspicion momentarily might have been allayed when he recognized Pezet, whom he knew to be an airman at Grissom. Nonetheless, his suspicion and that of Trooper Fouts rose to the level of probable cause when they discovered two men hiding in the rear of the truck, just as their reports had indicated. Moreover, the observation of a holster and a ski mask--in July--would certainly justify experienced officers in concluding that Mr. Chapman and his cohorts were involved in the reported bank robbery. Under the totality of the circumstances standard, Mr. Chapman's warrantless arrest was supported by probable cause.
b. warrantless search
It is uncontrovertible that, once they legally had arrested Mr. Chapman, the Indiana officers were justified in conducting the warrantless search that uncovered the weapons and the money in the duffel bag. In New York v. Belton,
453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), the Court held that
when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.
It follows from this conclusion that the police may also examine the contents of any containers found within the passenger compartment....
Id. at 460, 101 S.Ct. at 2864 (footnotes omitted). Such containers include "luggage, boxes, bags, clothing, and the like," id. at 461 n. 4, 101 S.Ct. at 2864 n. 4, and thus the duffel bag in this case was properly within the scope of the search. Although we find no error in the alternative rationale for the search relied on by the magistrate and district court--that officers had probable cause to believe that the fruits and instrumentalities of the robbery were to be found in the truck--the Court in Belton made clear that " '[a] custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification.' " Id. at 461, 101 S.Ct. at 2864 (quoting United States v. Robinson,
414 U.S. 218, 235, 94 S.Ct. 467, 477, 38 L.Ed.2d 427 (1973)).
2. Severance and double jeopardy
Prior to trial, Mr. Chapman filed a motion for severance. Mr. Wright admitted in state court that he had been present during the Twelve Mile bank robbery, but claimed to have been too intoxicated to form the specific intent to rob the bank. In his motion to sever, Mr. Chapman argued that Mr. Wright's anticipated intoxication defense in the upcoming federal trial would be antagonistic to his own defense of nonparticipation. The magistrate concluded that the two anticipated defenses were not mutually antagonistic and thus recommended denial of Mr. Chapman's motion to sever. Mr. Chapman's objection to this recommendation also was denied by the district court on March 1, 1989. A week later, the court denied Mr. Chapman's motion to have his case tried before the judge rather than a jury.
A joint jury trial began on June 19, 1989, and the court denied Mr. Chapman's renewed motion to sever. Mr. Wright testified in his own defense. He presented an alibi defense in regard to the Denver bank robbery, claiming to have been at his parents' home in Indianapolis at the time. He also testified that the Denver bank bait money found in his quarters was money that he had borrowed from Mr. Chapman. Mr. Wright claimed that Mr. Chapman and Pezet had admitted committing the Denver robbery. (Pezet, however, had been on duty in Columbus, Ohio, on the day of that incident. Mr. Wright also repeated his intoxication defense regarding the Twelve Mile robbery; in addition, he claimed that his participation had been induced by Mr. Chapman's threats.)
Mr. Chapman, who was conducting his own defense, sought to cross-examine Mr. Wright to bring out evidence that, during state plea negotiations, he had admitted participation in the Denver robbery. However, because Mr. Wright's plea had been withdrawn, the district court earlier had ruled that he could not be examined about the plea negotiations. In response to the government's opposition to severance, Mr. Chapman observed, "obviously as I moved for severance pretrial [and] throughout the course of the trial before we got to this point, the court was alerted that this would be a problem somewhere in the course of the trial." Tr. of June 27, 1989 at 806. The court concluded that Mr. Chapman's inability to cross-examine Mr. Wright on his prior inconsistent statement threatened to "run[ ] afoul of the confrontation clause." Id. at 810. The court therefore severed Mr. Chapman out of the trial and ordered Mr. Wright's trial to continue. Mr. Chapman raised no objection at the time to the court's decision to allow Mr. Wright's trial, rather than his own, to continue. Mr. Wright's trial concluded with his conviction on all three counts.
On July 10, 1989, the day his second trial was scheduled to begin, Mr. Chapman filed a motion to dismiss in which he claimed that the second trial would violate his double jeopardy rights. The district court noted that "at the time the severance occurred it was my understanding that you agreed once we got to that point if the trial was going to go forward it had to be Wright's rather than yours with Wright having testified and having dumped it pretty heavily on you during his testimony." Tr. of July 10, 1989 at 251. Mr. Chapman responded as follows:
[I]f I understood that bowing out of the trial at that point would have caused me to go through a separate jury trial without that first jury and without the possibility of impeaching Mr. Wright on what he said in that trial, I probably would have elected to stay in that trial even though Mr. Wright's testimony weighed heavily against me.
Id. After the government pointed out that Mr. Chapman himself had sought severance in the first trial and the court observed that the various severance motions had not been based on the Rule 410 issue that eventually forced the severance, the court denied the motion to dismiss. At the end of Mr. Chapman's separate jury trial, he was convicted on all three counts.
Mr. Chapman now makes two related arguments in this appeal: (1) that the district court erred in refusing his pretrial severance motions and (2) that his mid-trial severance and consequent retrial violated his double jeopardy rights. We address each of these related issues in turn.
a. denial of pretrial severance motions
Under Federal Rule of Criminal Procedure 14, courts are authorized to grant a severance of defendants if a joint trial would be prejudicial. However, a joint trial of co-conspirators is "presumptively appropriate," and we review a district court's refusal of a severance motion under an abuse of discretion standard. United States v. Bond,
847 F.2d 1233, 1240 (7th Cir.1988). Severance is mandatory only if the anticipated defenses of two co-defendants are " 'mutually antagonistic' "--that is, only if "the acceptance of one party's defense will preclude the acquittal of the other." United States v. Ziperstein,
601 F.2d 281, 285 (7th Cir.1979), cert. denied,
444 U.S. 1031 , 100 S.Ct. 701, 62 L.Ed.2d 667 (1980). In a memorandum in support of his motion to sever, Mr. Chapman contended only that Mr. Wright was likely to admit participation in the Twelve Mile bank robbery and to rely on the intoxication defense that he had offered in state court. However, a jury could have believed that Mr. Wright lacked the specific intent to engage in bank robbery without necessarily concluding that Mr. Chapman was guilty of the same robbery. Therefore, the district court did not abuse its discretion in denying Mr. Chapman's pretrial severance motions.
b. mid-trial severance and retrial
We also conclude that the district court did not violate Mr. Chapman's double jeopardy rights by severing his case in the middle of the joint trial and ordering his retrial. The district court finally granted Mr. Chapman's oft-repeated request for severance only after it concluded that Federal Rule of Evidence 410 prevented him from impeaching Mr. Wright with the latter's admission, during negotiations over his withdrawn state plea, that he had participated in the Denver bank robbery. Because Mr. Wright's trial testimony implicated Mr. Chapman in that robbery, the district court found that severance was required to protect Mr. Chapman's confrontation clause rights. Mr. Chapman made no objection to severance at this time; indeed, the severance was granted upon renewal of his earlier motions. The district court both carefully considered the tension between the rights of the co-defendants and, by delaying his decision for a day, gave Mr. Chapman adequate opportunity to decide if he still desired a severance and mistrial.
As this court made clear in United States v. Buljubasic,
808 F.2d 1260 (7th Cir.), cert. denied,
484 U.S. 815 , 108 S.Ct. 67, 98 L.Ed.2d 31 (1987), a defendant's double jeopardy rights are not violated when a trial court grants a defendant's own mistrial motion.
The court finally gave him the relief he sought so avidly, and the double jeopardy clause does not prevent retrial. Only when "the conduct giving rise to the successful motion for a mistrial was intended to provoke the defendant into moving for a mistrial" does the "manifest necessity" standard come into play.
Id. at 1265 (quoting Oregon v. Kennedy,
456 U.S. 667, 679, 102 S.Ct. 2083, 2091, 72 L.Ed.2d 416 (1982)). Although Mr. Chapman later implied that he would not have sought a mistrial if he had understood that he faced retrial, see supra p. 1359 (citing Tr. of July 10, 1989), our review of the events leading to the severance convinces us that the district court "was entitled to treat this as a consensual mistrial." Buljubasic, 808 F.2d at 1265. We also find no error in the district court's decision to sever Mr. Chapman's case rather than that of Mr. Wright. First, as we have noted, it was Mr. Chapman who sought such relief at the time it was granted. Furthermore, Mr. Wright already had presented his case when Mr. Chapman's confrontation clause problem arose. Finally, as the district court noted:
Had the court declared a mistrial with respect to Mr. Wright rather than Mr. Chapman, there is no suggestion Mr. Wright willingly would have remained on the stand for cross-examination. Had Rule 410 not precluded Mr. Chapman's intended cross-examination of Mr. Wright, the fifth amendment privilege against self-incrimination likely would have done so. Mr. Chapman does not suggest that he would have been content with the striking of Mr. Wright's testimony and an admonition to the jury to disregard it.
Mem. op. of July 11, 1989 at 12.
3. Denial of compulsory process
Mr. Chapman also contends that the district court denied his Sixth Amendment right to compulsory process when it denied in part his petition for issuance of thirty-seven subpoenas pursuant to Federal Rule of Criminal Procedure 17(b). The facts essential to resolve this challenge are as follows.
On May 30, 1989, Mr. Chapman petitioned the court to issue, pursuant to Federal Rule of Criminal Procedure 17(b), subpoenas for thirty-seven witnesses necessary to his defense. On June 6, the district court held an ex parte hearing to determine which of the thirty-seven proposed witnesses were necessary to an adequate defense of Mr. Chapman. After a complete hearing, the court took the matter under advisement. On June 9, the court issued a sixteen-page ex parte memorandum and order analyzing Mr. Chapman's need for each witness, and concluded by granting the petition with respect to fourteen witnesses and denying the petition with respect to twenty-three witnesses. R.26. Recognizing that Mr. Chapman's pro se status may have led him to state the bases of his requests less articulately than counsel would have done, the court declared that close issues would be resolved in favor of Mr. Chapman. With regard to twenty of the denied witnesses, the court reasoned that their testimony would most likely be irrelevant, inadmissible, or not probative. With regard to the remaining three denied witnesses, the court reasoned that their testimony would only be relevant as cross-examination testimony, if indeed they testified for the prosecution.
The fourteen subpoenas were issued, and the witnesses were available in the courthouse, ready to testify, when the prosecution closed its case on July 14, 1989. After this considerable expenditure of judicial resources, including the costs of service and witness fees, which were waived under Federal Rule of Criminal Procedure 17(b), Mr. Chapman chose to rest his case without examining any of the subpoenaed witnesses.
On appeal, Mr. Chapman contends that the district court denied him "key witnesses to his defense" such that he "could not adequately present his defense to the charges in the indictment." Appellant Chapman's Supplemental Br. at 25. Mr. Chapman does not give reasons to support his contention that, contrary to the reasoning of the district court, the witnesses he was denied were necessary to an adequate defense.
Federal Rule of Criminal Procedure 17(b) requires a court to subpoena witnesses for indigent defendants when "the presence of the witnesses is necessary to an adequate defense." This court has held that a trial judge has "wide discretion" in determining whether to issue a given subpoena under rule 17(b). United States v. Garza,
664 F.2d 135, 141 (7th Cir.1981) (and cases cited therein), cert. denied,
455 U.S. 993 , 102 S.Ct. 1620, 71 L.Ed.2d 854 (1982). We are persuaded by the district court's reasons for concluding that twenty-three of the thirty-seven proposed witnesses were not necessary for Mr. Chapman to present an adequate defense, and in the absence of any persuasive counterargument by Mr. Chapman on appeal, we conclude that the district court did not abuse its discretion in denying Mr. Chapman twenty-three of the thirty-seven subpoenas he requested. The district court adequately respected Mr. Chapman's Sixth Amendment right to compulsory process when it granted him subpoenas for fourteen witnesses.
4. Effective assistance of counsel
Although the district court repeatedly warned Mr. Chapman of the perils of proceeding pro se, Mr. Chapman insisted on representing himself at trial. The court appointed standby counsel to assist Mr. Chapman, although the record reflects that Mr. Chapman repeatedly refused to cooperate with standby counsel. On appeal, Mr. Chapman accompanies his compulsory process challenge with a claim that he had ineffective assistance of counsel.
The first argument Mr. Chapman offers in support of this claim is that correctional officials at the Metropolitan Correctional Center in Chicago (MCC), where Mr. Chapman was incarcerated before trial, denied him sufficient access to the MCC's law library. This court has consistently held that " 'when a defendant (pretrial detainee) is offered the assistance of appointed counsel and refuses the same, no constitutional right exists mandating that the prisoner in the alternative be provided access to a law library should he refuse the services of court-appointed counsel.' " United States v. Moya-Gomez,
860 F.2d 706, 743 (7th Cir.1988) (quoting United States ex rel. George v. Lane,
718 F.2d 226, 227 (7th Cir.1983)), cert. denied,
492 U.S. 908 , 109 S.Ct. 3221, 106 L.Ed.2d 571 (1989).
The next argument Mr. Chapman offers in support of this claim is that the assistance of standby counsel "fell well below normal standards of representation." The record, however, does not reflect any shortcomings in the efforts of standby counsel, or that any actions of standby counsel prejudiced Mr. Chapman's defense in any way. The record does show that Mr. Chapman refused to cooperate with standby counsel and that the district court cautioned Mr. Chapman that he was squandering a valuable resource.
Mr. Chapman also contends that standby counsel "totally betrayed appellants confidence with underhanded deception and trickery." While Mr. Chapman does not give examples to illustrate standby counsel's "trickery," the record reflects that Mr. Chapman complained to the court that when he asked standby counsel to provide him with a copy of Indiana Code § 17-3-14-5, standby counsel sent him Indiana Code § 35-33-1-1. Mr. Chapman suggested to the court that standby counsel was possibly "thinking for [him]" and hampering his defense. In fact, as standby counsel reminded the court, Indiana Code § 17-3-14-5 was recodified in 1980 at § 35-33-1-1. Tr. of April 26, 1989 at 86, 89.
As a rule, a defendant who chooses to represent himself cannot later claim ineffective assistance of counsel. Faretta v. California, 422 U.S. 806, 834-35 n. 46, 95 S.Ct. 2525, 2541 n. 46, 45 L.Ed.2d 562 (1975); Prihoda v. McCaughtry,
910 F.2d 1379, 1386 (7th Cir.1990); United States v. Troxell,
887 F.2d 830, 836 (7th Cir.1989) (and cases cited therein). Mr. Chapman has given this court no reason to create an exception to this rule.
5. Sentencing
Mr. Chapman's final contention is that the district court sentenced him illegally by an ex post facto application of the amended version of
18 U.S.C. 924(c) (use of a firearm during and in relation to a crime of violence). In 1978, the Supreme Court held that Congress had not intended to authorize consecutive sentences under
18 U.S.C. 924(c) and 2113(d) (armed bank robbery) because the latter section contains its own enhancement provision for use of a firearm. See Simpson v. United States,
435 U.S. 6, 98 S.Ct. 909, 55 L.Ed.2d 70 (1978). However, as Mr. Chapman concedes, Congress authorized such consecutive sentences when it amended section 924(c) in the Comprehensive Crime Control Act of 1984 (CCCA), Pub.L. No. 98-473, § 1005(a), 98 Stat.1976, 2138-39 (codified as further amended at
18 U.S.C. 924(c) (1988)). Mr. Chapman contends that the effective date of this amendment was November 1, 1987, months after the May and July events that underlie his convictions.
In fact, the November 1987 effective date relates only to the Sentencing Guidelines authorized by Chapter II of the CCCA. Chapter X, which contained the relevant amendment of section 924(c), had no express effective date and thus became effective when enacted on October 12, 1984. See United States v. Luskin,
926 F.2d 372, 379-80 (4th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 68, 116 L.Ed.2d 43 (1991); United States v. Holloway,
905 F.2d 893, 895 (5th Cir.1990) (per curiam); United States v. Robinson,
865 F.2d 171, 172 (8th Cir.1989) (per curiam); United States v. York,
830 F.2d 885, 892 (8th Cir.1987) (per curiam), cert. denied,
484 U.S. 1074 , 108 S.Ct. 1047, 98 L.Ed.2d 1010 (1988); see also United States v. Paiz,
905 F.2d 1014, 1029-31 (7th Cir.1990) (distinguishing between delayed effective date of Sentencing Guidelines and immediate effective date of Chapter V of the CCCA), cert. denied, --- U.S. ----, 111 S.Ct. 1319, 113 L.Ed.2d 252 (1991). We thus conclude that there was no ex post facto application of section 924(c) in this case.
B. Mr. Wright's Appeal
1. Search and seizure
Mr. Wright sought to suppress the fruits of the search of his quarters that had occurred shortly after his arrest. The district court determined that the acting base commander, who had authorized the search, had probable cause to do so. Memorandum and Order of Nov. 8, 1988 (R.28) at 4. Even though some of the information on which permission to search was granted related to the Denver bank robbery, which had occurred over one month prior to the July 6, 1987 search, the court concluded that the information "was not so stale as to defeat probable cause to believe the fruits and instrumentalities of the Denver robbery would be found in Airman Wright's quarters." Id. at 5.
The court next considered Mr. Wright's contention that the search was invalid because it had not complied with the Oath or Affirmation Clause of the Fourth Amendment and with the analogous provision of Federal Rule of Criminal Procedure 41(c). Mr. Wright contended that the involvement of civilian federal and state authorities in the search had, in effect, converted the search from a military search to a "federal" one requiring strict compliance with the Fourth Amendment and with Rule 41(c). The district court agreed that there had been significant involvement of civilian authorities in developing the factual basis underlying the search. R.28 at 8-9. Nonetheless, the court concluded that compliance with Military Rule of Evidence 315, which contains no oath or affirmation requirement, was adequate to protect Mr. Wright's Fourth Amendment rights. Id. at 9 (citing United States v. Brown,
784 F.2d 1033 (10th Cir.1986)). The court added that there was no evidence that "state and federal agents gained some improper tactical or strategic advantage by employing military procedures" in this case. Id. Furthermore, the court reasoned that the good faith exception to the exclusionary rule, see United States v. Leon,
468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), was applicable to the search of Mr. Wright's quarters. R.28 at 9-12.
Finally, the district court addressed Mr. Wright's claim that seizure of documents indicating his ownership of two pistols was outside the scope of the authorized search and not permissible under the "plain view" doctrine. The court granted Mr. Wright's suppression motion as to those documents, but otherwise denied the motions. Id. at 14.
Mr. Wright now appeals the district court's denial of his motion to suppress bait money obtained from the search of his quarters. Mr. Wright argues that (a) the state and federal law enforcement officials' active participation in the search transformed a military search into a federal or governmental search, which required full compliance with the Fourth Amendment, and (b) even if the search was purely military and only required compliance with military search procedures, it did not meet those procedures because Special Agent Reifert presented Lt. Col. Winge with insufficient evidence to find probable cause. The facts relevant to this challenge include the following.
The second robbery occurred on July 3, 1987, a Friday. The following Monday, July 6, Indiana State Police (ISP) Detective Kenneth Roland, the officer in charge of the ISP investigation of the first robbery, was notified of the second robbery. That morning, Air Force Office of Special Investigations (AFOSI) Special Agent Steven Reifert called Detective Roland to discuss the fact that three security police officers had been arrested three days earlier in connection with a bank robbery. Because Detective Roland believed the modus operandi was very similar in the two robberies, he arranged to meet with Special Agent Reifert at noon that day to investigate the possibility that the three suspects captured after the second robbery--Mr. Chapman, Mr. Wright, and Mr. Pezet, all of the 305th Security Police Squadron stationed at Grissom Air Force Base--were also involved in the first robbery. Detective Roland called the FBI post in Lafayette, Indiana, and asked FBI Special Agents Otto Johnson and Walt Valentine to assist him in his investigation.
Detective Roland, along with FBI Special Agents Johnson and Valentine, met AFOSI Special Agent Reifert in the AFOSI office at the base at noon. Also present were AFOSI Special Agent Dave Rish, Captain William Thomas, and Acting Base Commander Lt. Colonel Gaylor Winge. Detective Roland informed everyone about the details of the second robbery and why, based on the similar modus operandi, he thought Mr. Wright, Mr. Chapman, and Mr. Pezet might have been involved in the first robbery. Detective Roland suggested that they interview all the security police officers on base who knew Mr. Wright, Mr. Chapman and Mr. Pezet. Everyone present, with the exception of Lt. Col. Winge, then broke up into investigative teams and began interviewing base personnel. After completing the interviews, they met to review what had been discovered. The group decided to seek authorization to search Mr. Wright's room on base.
Special Agent Reifert then contacted Major Brubaker, the Staff Judge Advocate for the base, and discussed the facts of the case and the idea of searching Mr. Wright's room. Major Brubaker told Reifert that he thought there was probable cause to conduct a search. Reifert then typed up a statement of probable cause along with a Search Authorization form and presented them to Lt. Col. Winge at his residence on base. Reifert was not asked to, and did not, swear to the truth of the probable cause statement, but merely told Lt. Col. Winge that the information was true to the best of his knowledge. Lt. Col. Winge found probable cause and authorized Special Agent Reifert, "with the assistance of such person or persons as may be necessary," to search Mr. Wright's room for "[a w]hite hooded sweatshirt with 'Kings' emblem on the front, any money stolen from the Wabash Valley Bank and Trust, Denver, IN, any handguns that may have been used in the robbery, laundry bags, a white pair of gloves and any other items of clothing possibly used in the Denver IN Bank Robbery." R.1 at 18.
While two Air Force security police officers secured the door to Mr. Wright's room, AFOSI Special Agent Reifert, FBI Special Agents Johnson and Valentine, and Indiana State Police Detective Roland searched the room. Among the items they found were $296 in U.S. currency, including bait money that had been taken in the first robbery, and Air Force registration papers for a 9mm pistol. Detective Roland took the seized evidence into his possession, transported it back to the State Police Post, and stored it there in an evidence locker.
a. governmental search
Mr. Wright contends that the currency seized in the search of his quarters--particularly the bait money from the Denver robbery--should have been excluded from his trial because the search violated his Fourth Amendment rights. Mr. Wright contends that the involvement of state and federal law enforcement officials converted the search from a military search to a governmental one requiring strict compliance with the Fourth Amendment. The district court agreed with Mr. Wright that the state and federal authorities "participated in the search in a significant way." R.28 at 8-9. However, the district court held that the search met all Fourth Amendment requirements by virtue of the fact that it comported with Military Rule 315. In drawing this conclusion, the court relied upon United States v. Brown,
784 F.2d 1033 (10th Cir.1986), in which a similar conclusion was drawn. However, in Brown the search authorization not only met the requirements of Military Rule 315, it also was supported by an oath. In this case, however, the request for search authorization was not supported by oath or affirmation. We cannot conclude, therefore, that Brown is directly on point.
On the other hand, we cannot accept Mr. Wright's argument that the situation before us is comparable to instances where federal law enforcement officers participate with state or foreign country officials or private entities in a search that does not comport with standards embodied in the federal constitution, statutes or judicial rule. In those instances, the procedures followed did not provide the defendant with protections of the calibre contemplated by federal law. By contrast, the procedures followed here, while decidedly different from those employed by the federal government in the civilian community, are standards grounded in the federal constitution's Fourth Amendment and in the Congress' prerogative to make rules and regulations for the governance of the land and naval forces of the United States. See
U.S. Const. art. I, sec. 8 cl. 14 ("The Congress shall have Power ... [t]o make Rules for the Government and Regulation of the land and naval Forces").
It is too late in the day to suggest that the Fourth Amendment's basic protection against unreasonable searches and seizures does not apply to members of the armed forces. Nevertheless, the military implementation of that guarantee is different from that employed in civilian matters. In civilian cases, the warrant requirement has been abrogated by judicial decision only in certain carefully described situations. In the military situation, Congress "has primary responsibility for the delicate task of balancing the rights of servicemen against the needs of the military." Solorio v. United States,
483 U.S. 435, 447, 107 S.Ct. 2924, 2931, 97 L.Ed.2d 364 (1987). Through delegation of authority to the President, Congress has determined that an alternate procedure to a warrant issued by a magistrate is more compatible with the realities of military life.
The constitutional legitimacy of such military searches is hardly a novel proposition. For instance, in United States v. Grisby,
335 F.2d 652 (4th Cir.1964), Judge Haynsworth upheld the admissibility of evidence procured by a military search and admitted as evidence in a civilian prosecution of a servicemember. He wrote,
The Fourth Amendment prohibits unreasonable searches. Searches as authorized by a valid search warrant are not prohibited because not unreasonable. Searches reasonably incident to lawful arrests are also not prohibited, for they too are not unreasonable. And we can find no basis for holding that a search conducted by military authority, which was completely lawful and valid when made as a matter of military law, is unreasonable under the Constitution.
Grisby, 335 F.2d at 656.
Under Military Rule of Evidence 315, an investigatory search of a member's person or quarters may only be undertaken (absent exigent circumstances) when the investigator presents the military commander with information establishing that there is probable cause to believe that the area sought to be searched contains evidence of unlawful activity. The investigator may present that information orally or in writing. There is no explicit requirement that the person presenting the information be under oath, although it appears to be the preferred practice.
The United States Court of Military Appeals, the court recognized by both the Congress and the Supreme Court as having a particular expertise in this area, has explained that the military search authorization procedure is a finely tuned accommodation of the servicemember's privacy interests grounded in the Fourth Amendment and the specific needs, dictated by military necessity, for good order and discipline in the armed forces. See United States v. Stuckey, 10 M.J. 347, 358-61 (C.M.A.1981). The relationship between a member of the armed forces and a commander is different from the relationship between a civilian and a magistrate. Members of the armed forces have considerably less of an expectation of privacy while living on a military installation, and a military commander has considerably more interest in being informed of all activities in the area under his command. As the Court of Military Appeals noted in Stuckey: "A military commander has responsibilities for investigation and for law enforcement that a magistrate does not possess. Also, he has responsibilities for the welfare and combat readiness of the personnel under his command." 10 M.J. at 359. Continued the court,
Winthrop describes "custom" as "a uniform, known practice of long standing, which is also certain and reasonable." Winthrop, Military Law and Precedents (1920 Reprint), 42. "Military custom," so defined, has long granted military commanders broad powers of search and seizure. See United States v. Middleton, [10 M.J. 123 (C.M.A.1981) ]. The existence of that custom clearly imposes some limitation on a serviceperson's reasonable expectation of privacy.
Id. at 360. Consequently, while the "authorization to search" is sometimes referred to in casual parlance as a "warrant" and the commander is referred to as a "magistrate," such terminology, noted the Court of Military Appeals, does not reflect the theoretical or practical reality of the situation. As that court wrote in Stuckey:
In our view servicepersons have never expected that, before authorizing a search, a military commander would comply with the warrant procedure required of a federal magistrate. Indeed, except to a literalistic and loyal reader of this Court's opinions, equating a military commander with a judicial officer would probably have seemed odd. Instead, the commander's long-recognized power to authorize searches within the area of his command is generally viewed as derived from and correlative with his position and responsibilities in the military community--which, of course, is "a specialized society separate from civilian society." Parker v. Levy,
417 U.S. 733, 743, 94 S.Ct. 2547, 2556, 41 L.Ed.2d 439 (1974). Accordingly, a commander's authorization of a search has never been equated with the judicial-type procedure which comes within the contemplation of the warrant clause of the Fourth Amendment.
10 M.J. at 360.
The oath requirement is no technical or trivial component of the Warrant Clause of the Fourth Amendment. It is designed to ensure the truthfulness of the information considered by the magistrate by inducing the supplier of that information to consider carefully his submission. Nevertheless, in the military environment, the Warrant Clause plays no part in the determination of probable cause. The alternate procedure, the Court of Military Appeals has noted, provides its own safeguards for insuring the accuracy of the information provided. As the court noted in Stuckey, unlike the civilian magistrate, the military commander oftentimes knows a good deal about the subject of the search prior to being presented with the investigator's information. The military commander can be expected to assess the investigator's information in light of that broader background. The commander may also rely on a wider variety of sources. Chief Judge Everett wrote:
Unlike a civilian magistrate, the military commander who is requested to authorize a search often will already have acquired information that is relevant to a determination of probable cause. He may have seen police reports concerning a suspect or know of his reputation, prior convictions, or nonjudicial punishments. Some of the commander's information may be of a hearsay nature and not admissible in court, but nevertheless of sufficient reliability so that, if properly presented in an affidavit, it would help support a search warrant. Cf. Jones v. United States, [
362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960) ]; Costello v. United States,
350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 (1956); Brinegar v. United States, [
338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949) ]. Some of the evidence already in the commander's possession may consist of documents which are not prepared under oath but which--under hearsay exceptions for official records or business entries--would be admissible at a trial to establish guilt or innocence.
... Must the commander who possesses this information, in turn, refer the request for search authority to a higher echelon and then submit to the superior commander his own sworn recitation of the information which he possesses? Further, if official records or business records contain information relevant to a probable cause decision, will it be necessary that someone swear before the commander that the documents say what they purport to say, rather than merely submitting the records to the commander for his consideration?
10 M.J. at 363. Moreover, there are significant additional safeguards, both legal and practical, to ensure that the information presented to the commander is true and that the commander considers the information carefully. As the district court noted, a servicemember who supplies false information to a commander is subject to court-martial. Moreover, the commander is subject to significant adverse consequences for sanctioning an unwarranted invasion of privacy. As Chief Judge Everett noted:
In promulgating paragraph 152 of the Manual the President may also have recognized that inherent in the command structure are some safeguards against a commander's indiscriminate invasion of the privacy of his subordinates. For one thing, combat readiness of troops depends in large part upon their motivation, but discipline and punishment cannot alone develop the necessary motivation. Leadership is also required, and one aspect of successful leadership is concern for the welfare of subordinates. Loyalty in a military unit, as in other organizations, is a two-way street. A commander who approves--or even tolerates--arbitrary invasions of the privacy of his subordinates is not demonstrating the brand of leadership likely to command the loyalty or produce the high morale associated with a combat-ready organization. Accordingly, a commander has some incentive to act reasonably and with sound judgment in acting on requests for searches and seizures which involve his personnel. Moreover, repeated failures by a commander to respect the Fourth Amendment rights of his troops might become a basis for a "complaint of wrongs" under Article 138 of the Uniform Code,
10 U.S.C. 938, or, in the extreme case, even for a prosecution for dereliction of duties as a commander. See Article 92, UCMJ,
10 U.S.C. 892.10 M.J. at 359-60.
We need not confront in this case a situation where there is no legitimate military interest in the search and the application to the commander is simply an effort to evade the Warrant Clause. Indeed, given the obvious military interest in all matters that occur on a military installation, such a situation may be hypothetical. In this case, there is no indication that the application for permission to search directed to the base commander was intended to circumvent the warrant requirement. Nor are we confronted with a situation in which the participation of military authorities in the investigation can be considered "pro forma." While the record reflects that the investigation was a joint federal, state, and military enterprise, the record simply does not support a suggestion that there was no real military investigative interest. Common sense suggests the contrary. The commission of serious crimes of violence by military personnel who are members of a unit engaged in providing security to a base containing warplanes and in providing personal security to the Vice-President of the United States is a matter of utmost concern to the cognizant commander. Because a procedure contemplated by the federal constitution was legitimately implemented by those permitted to use it, the civilian federal officers were under no obligation to engage in the duplicative effort of securing a warrant from a magistrate.
b. probable cause requirement under Military Rule of Evidence 315
Mr. Wright's second challenge is to the district court's ruling that Lt. Col. Winge had probable cause to authorize the search. Mr. Wright contends that the evidence that Special Agent Reifert presented to Lt. Col. Winge was both insufficient and stale.
Regarding the sufficiency of the evidence, the probable cause standard under Military Rule of Evidence 315(f) is the same "totality of the circumstances" standard that the Supreme Court adopted in Illinois v. Gates:
The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, ... there is a fair probability that contraband or evidence of a crime will be found in a particular place.
462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983). The district court's task in this case was therefore also defined by Gates: "simply to ensure that the magistrate had a 'substantial basis for ... conclud[ing]' that probable cause existed." Id. (quoting Jones v. United States,
362 U.S. 257, 271, 80 S.Ct. 725, 736, 4 L.Ed.2d 697 (1960)). We review de novo the district court's judgment on this matter. United States v. Lamon,
930 F.2d 1183, 1187 (7th Cir.1991); United States v. McKinney,
919 F.2d 405, 408 n. 2 (7th Cir.1990).
As the district court noted, AFOSI Special Agent Reifert submitted a statement to Lt. Col. Winge that alleged that (1) Mr. Wright, along with Mr. Chapman and Mr. Pezet--all members of the 305th Security Police Squadron--had been arrested for bank robbery by the Indiana State Police; (2) Mr. Chapman has also been involved in a bank robbery five weeks earlier in Denver, IN; (3) in the earlier robbery, Mr. Chapman had an accomplice who matched Mr. Wright's description; (4) Mr. Chapman and Mr. Wright were close friends and spent considerable time together; (5) there was a similar modus operandi for both robberies; (6) Mr. Wright owned a 9mm gun such as those recovered when Mr. Wright, Mr. Chapman, and Mr. Pezet were arrested for the later robbery; and (7) Mr. Wright had been issued white gloves for his work as a gate guard, and white gloves were used in the earlier robbery. The information provided Lt. Col. Winge with more than substantial basis for concluding that a search of Mr. Wright's quarters would reveal money stolen from the banks as well as other items connected with the robberies.
Nevertheless, Mr. Wright contends that the information that Special Agent Reifert provided to Lt. Col. Winge was stale and therefore could not have supported a finding of probable cause that items from the May 29 robbery would still be in Mr. Wright's quarters on July 6, the date of the search. Although only three days had passed since the July 3 robbery, thirty-seven days had passed since the May 29 robbery. In particular, Mr. Wright contends that in the context of a bank robbery, a "highly consumable" item such as cash is not likely to remain in one place. In support of this argument, Mr. Wright cites United States v. Steeves,
525 F.2d 33 (8th Cir.1975), in which the Eighth Circuit remarked that eighty-seven days after a bank robbery "there was little reason to believe that any of the bank's money or the money bag would still be in the [defendant's] home." Steeves, 525 F.2d at 38. In response, the government cites United States v. Jackson,
756 F.2d 703, 705 (9th Cir.1985), in which the Ninth Circuit upheld a home search for stolen bank currency two months after the robbery. "The two month interval between the robbery and the search of [the defendant's] apartment did not dispel the probability that the currency, or some of it, remained in [the defendant's] apartment." Id. The district court properly noted that this court has recently limited the role that staleness plays in the probable cause calculus. United States v. Certain Real Property, Commonly known as 6250 Ledge Road, Egg Harbor, WI,
943 F.2d 721, 724 (7th Cir.1991). The district court was also correct to rely on the fact that Mr. Wright had just been apprehended for his participation in the later robbery, and thus this case involved continuing criminal activity. As we have said, " 'where the affidavit recites facts indicating ongoing, continuous criminal activity, the passage of time becomes less critical.' " Lamon, 930 F.2d at 1188 (quoting United States v. Shomo,
786 F.2d 981, 984 (10th Cir.1986) (dicta)).
Furthermore, because Mr. Wright was an airman stationed on base, Lt. Col. Winge was aware that Mr. Wright had few places other than his quarters available to him to hide the stolen money and few inconspicuous opportunities to "consume" large amounts of cash on base. In light of these facts and the fact that the evidence suggested that Mr. Wright was involved in a continuing criminal activity, we conclude that the thirty-seven-day-old information regarding the first bank robbery was not old enough to undermine Lt. Col. Winge's substantial basis to believe that a search of Mr. Wright's quarters would reveal money stolen from the Denver bank as well as other evidence of that crime.
c. good faith exception
The district court held that, even if the search of Mr. Wright's quarters violated his Fourth Amendment rights, the evidence would be admissible under the good faith exception to the exclusionary rule articulated in United States v. Leon,
468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), and its companion case, Massachusetts v. Sheppard,
468 U.S. 981, 104 S.Ct. 3424, 82 L.Ed.2d 737 (1984). R.28 at 9-12. On appeal, Mr. Wright contends that this is not a viable alternative basis for the district court's holding because the statement that AFOSI Special Agent Steven Reifert submitted in support of his request for authorization to search Mr. Wright's quarters was " 'so lacking in indicia of probable cause as to render an official belief in its existence entirely unreasonable.' " Appellant Wright's Br. at 30 (quoting Leon, 468 U.S. at 924, 104 S.Ct. at 3421). However, as we have already determined, supra pp. 1372-1373 (listing items in probable cause statement), the substance of Special Agent Reifert's statement was more than sufficient to provide probable cause to believe that evidence relating to the first robbery could be found in Mr. Wright's quarters. Also, Mr. Wright offered no evidence that Special Agent Reifert was dishonest or reckless in preparing the statement. For these reasons, we agree with the district court that, even if the search of Mr. Wright's quarters violated the Fourth Amendment, the investigating officers' reasonable good-faith reliance on that authorization justified the district court's denial of Mr. Wright's motion to suppress.
2. Denial of surrebuttal testimony
Finally, Mr. Wright contends that the district court abused its discretion in refusing to allow him to present surrebuttal testimony in support of his alibi defense. In his case in chief, Mr. Wright and his parents testified that, at approximately the time of the Denver bank robbery, he was at their home in Indianapolis. He also presented evidence that he had received a collect call at their home at 6:07 p.m. from the Grissom Air Force Base home of John and Terri Stout. Mr. Wright claimed that Ms. Stout had made the collect call and that they were "involved" at the time, but not romantically. Tr. of June 26, 1989 at 774; Tr. of June 27, 1989 at 827. In rebuttal, the government presented the testimony of both Mr. Stout and his former wife, who testified as Terri Lombardo. Both Mr. Stout and Ms. Lombardo testified that Mr. Wright actually placed the collect call to his parents' home on the afternoon of the robbery. Ms. Lombardo also testified that she and Mr. Wright had become "close friends" as problems developed in her marriage, but she denied having an affair with him. Id. at 910. Ms. Lombardo acknowledged calling Mr. Wright a number of times to discuss her marital problems, but testified that she had never placed a collect call to his parents' residence.
Following Ms. Lombardo's testimony, Mr. Wright sought to present surrebuttal in the form of the testimony of his sister, Lori Compton. Ms. Compton would have testified that, shortly after Mr. Wright was arrested in July 1987, Ms. Lombardo "indicated that she was in love" with Mr. Wright and that "she was concerned about him." Tr. of June 28, 1989 at 963. Mr. Wright's counsel contended that the proffered statements "would be admissible under the state of mind exception to the hearsay rule and they are relevant to her bias or her ulterior motive for her statement in July of 1987 which she has continued to adopt through" her trial testimony. Id. Asked by the court why Ms. Lombardo's being in love with Mr. Wright would have created bias, defense counsel responded, "She was married to John Stout at the time. It gave her a motive to conceal the actual events of May 29th, 1987, as I see them." Id. The court, however, concluded that this theory of bias was not "a reasonable inference." Id. Furthermore, the court observed that Ms. Lombardo's testimony about her relationship with Mr. Wright "was quite consistent with" Mr. Wright's own testimony. Id. at 964. The court therefore refused to allow the proffered surrebuttal.
We shall not reverse a trial court's decision regarding the admissibility of surrebuttal testimony unless the trial court abuses its discretion. See United States v. Gaertner,
705 F.2d 210, 217 (7th Cir.1983) ("Indeed, great deference is accorded to the discretion and judgment of the trial court when granting and/or denying a party's motion for rebuttal or surrebuttal testimony."), cert. denied,
464 U.S. 1071 , 104 S.Ct. 979, 79 L.Ed.2d 216 (1984). District courts are authorized to "exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment." Fed.R.Evid. 611(a).
There was no abuse of discretion in this case. As did the district court, we see little significant difference between Mr. Wright's and Ms. Lombardo's testimony regarding their relationship. Therefore, assuming arguendo that the proffered testimony would have been admissible, it is indeed speculative whether it would have demonstrated a bias against the defendant. In any event, the jury was aware that Ms. Lombardo and her husband were having marital difficulties during the period just after the robberies; it also was aware that Ms. Lombardo and Mr. Wright were seeing each other socially and talking on the telephone a good deal. Furthermore, during closing arguments, Mr. Wright's counsel told the jury that Ms. Lombardo "came up with this story about Jack making a collect call. She came up with it on July 29th, 1987 as a further effort to conceal her relationship with my client and she has clung to that." Tr. of June 28, 1989 at 1012. Therefore, even if the district court did commit error in refusing to admit the statement, the issue was still before the jury and, given the weight of the evidence against the defendant, any error was clearly harmless.
Conclusion
For the foregoing reasons, the judgments of the district court are affirmed.
AFFIRMED.
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