United States v. Richard Grandmont

Citations: 680 F.2d 867; 1982 U.S. App. LEXIS 18302; 10 Fed. R. Serv. 1032Docket: 81-1530

Court: Court of Appeals for the First Circuit; June 16, 1982; Federal Appellate Court

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Richard Grandmont was indicted and convicted of conspiracy to commit bank robbery, interstate transportation of a stolen vehicle, and bank robbery. The prosecution's case relied heavily on the testimony of an accomplice and evidence of Grandmont's flight from law enforcement. Although Grandmont did not testify, he offered an alibi defense through other witnesses.

One key issue on appeal was the jury instruction regarding possible verdicts. The trial judge instructed the jury that their options were to find Grandmont not guilty on all counts or guilty on all counts. Grandmont argued this phrasing precluded the possibility of finding him guilty on some counts while not guilty on others. The appellate court, however, determined that when considering the jury instructions as a whole, particularly the clarification that the jury must find a unanimous verdict for each individual count, the instruction did not constitute plain error.

Another point of contention was the admission of evidence regarding Grandmont's flight and the jury instruction that such behavior could imply guilt. The appellate court upheld the district court's decision, citing precedent that allows flight evidence to be considered relevant to guilt if there is sufficient factual basis. Grandmont's actions included departing to Canada after being informed of his status as a suspect, avoiding his home upon return, and attempting to change his appearance before his eventual arrest in California. The court found that his efforts to evade law enforcement established an adequate factual predicate for the admission of flight evidence.

The court upheld the admission of evidence regarding the defendant's flight or concealment post-accusation, which the jury could consider when determining guilt. The instruction did not mandate that the flight occur immediately after the offense; in this case, the flight was linked to a subpoena. The defense did not object to the instruction but asked for clarification that the defendant, Grandmont, had not been indicted at the time of the alleged flight. The court granted this clarification but also informed the jury that Grandmont had been charged with contempt for failing to appear, and a bench warrant was issued. No reversible error was found.

The defendant attached a capias for a drug charge from 1978 to his brief, suggesting that his flight was related to this, not to guilt concerning the current charges. However, he did not raise this argument during the trial, leading to the court granting the Government's motion to strike the capias from consideration.

Regarding impeachment by prior convictions, the district court ruled that if the defendant testified, he could be impeached by three 1972 robbery convictions but not by three 1972 burglary convictions. The defendant chose not to testify based on this ruling. The applicable standard for impeachment under Federal Rule of Evidence 609(a) allows for the admission of evidence of prior convictions if they are punishable by over a year of imprisonment or involve dishonesty. The trial judge did not specify which subsection of the Rule was applicable in admitting the robbery convictions. The defendant contended that if the judge relied on subsection (1), he failed to weigh the probative value against potential prejudice, and if under subsection (2), he erred because robbery is not classified as a crime of dishonesty. The Government claimed the defendant waived his objection, but this claim was deemed ambiguous. Prior to trial, the Government had argued for the admissibility of both robbery and burglary convictions, and the court ruled that the robberies could be used for impeachment, preserving the rights of both parties to object.

The court considered the admissibility of prior robbery convictions in relation to the defendant's potential testimony. Initially, the court indicated it would allow three minor robberies but not breaking and entering incidents. Defense counsel did not object to this ruling, which may have reflected mere approval rather than a waiver of rights previously preserved. The court declined to treat this lack of objection as a waiver.

On the merits, the Government argued that the robbery convictions were admissible as crimes of dishonesty under Rule 609(a)(2) or through a balancing test under Rule 609(a)(1). The court, aligning with previous case law, held that robbery itself does not qualify as a crime of dishonesty under 609(a)(2), citing Judge Carl McGowan's reasoning in United States v. Smith, which distinguished robbery from crimes involving deceit or false statements. The court emphasized that for a crime to qualify under 609(a)(2), it must involve deceitful conduct, which was not evidenced in the present case of purse snatchings.

However, the court recognized that the district court had appropriately exercised discretion under Rule 609(a)(1), considering the balancing factors for admitting evidence and aiming to minimize prejudice to the defendant. The judge's decision to admit only the "three minor robberies" further indicated a careful approach rather than an automatic acceptance of robbery as a relevant offense.

Defendant asserts that the judge failed to adequately record his balancing of interests, yet Rule 609(a)(1) does not mandate such on-the-record balancing, and no First Circuit precedent enforces this obligation. The judge's discretion is assumed, and no abuse is found. Regarding the search warrant, the defendant claims that identification documents seized from his suitcase should have been suppressed due to an insufficient affidavit. However, the defense did not file a motion to suppress before trial, which is required under Fed.R.Crim. P. 12(b)(3). The defendant argues that this oversight should be excused since he did not receive the affidavit beforehand, but the court finds no "cause" to excuse the late objection, noting that defense counsel had access to the search warrant and could have requested the affidavit. Additionally, the defendant contends that the prosecution violated Brady v. Maryland and the Jencks Act by not disclosing a statement from alibi witness Paul Stevens. However, the court concludes that the prosecution complied with both requirements. The timeline shows that the defendant initially provided an alibi to Agent Matson, which changed when Stevens offered a different account post-robbery. The defense requested all relevant materials pre-trial, and a magistrate confirmed the absence of exculpatory evidence, while acknowledging the government's obligation to provide any if discovered later.

On April 17, 1981, the Government received a Notice of Alibi from the defendant, which presented a new account of his activities on the day of the robbery, asserting he was cutting wood at a property owned by Grandmont. Agent Matson testified about Grandmont's flight, and during cross-examination, the defense learned of a statement from Stevens, which they claimed had not been disclosed prior. The defense objected and requested a mistrial or for the Agent's testimony to be stricken, but both requests were denied.

The Stevens statement had two key aspects: it exculpated Grandmont by indicating he was not at the crime scene, but this did not prejudice the defense since they were aware of Stevens' willingness to testify as an alibi witness. The second aspect claimed Grandmont was with Stevens, contradicting the defendant's earlier assertion that he was at his own property on the robbery day. As this was not exculpatory, there was no constitutional obligation for disclosure, resulting in no reversible error under Brady.

Regarding the Jencks Act, the defense argued that the Government was required to disclose all Jencks Act statements before trial as mandated by the magistrate. However, the relevant order did not impose such a duty, and the magistrate could not compel pre-trial disclosure of witness statements. There was no breach of the Jencks Act during the trial, as the FBI report was provided upon request, even without the required showing of relevance to Stevens' testimony.

The defendant's challenge to the sufficiency of the evidence was also found to be without merit. The testimony from an accomplice regarding the conspiracy and the circumstantial evidence—including the defendant's possession of cash shortly after the robbery, his flight from the grand jury, and attempts to conceal his identity—were deemed sufficient for the jury to establish guilt beyond a reasonable doubt for each of the three offenses. Consequently, the motion to strike was granted, and the judgment was affirmed.

Each robbery was punishable by over one year of imprisonment. The court's holding aligns with the principle that theft reflects adversely on honesty, as noted in Judge Burger's opinion in Gordon v. United States. However, this principle does not interpret Congress's intent behind Rule 609(a)(2), which was enacted after Gordon. In United States v. Kiendra, the court affirmed that prior convictions for theft-related offenses could be used for impeachment under 609(a)(2) but did not address the proper classification of those convictions. The government’s cited cases supporting the automatic admissibility of theft offenses under Rule 609(a)(2) are found unpersuasive, as many do not explicitly reference subdivision (2) and may support admission under subdivision (1) instead. Additionally, some cases were interpreted narrowly regarding their implications for impeachment. The factors relevant to determining admissibility include the nature of the offense, age of the conviction, similarity to the current charges, importance of the defendant's testimony, and the centrality of the credibility issue.