United States v. Carlo Scott Bagley

Citations: 772 F.2d 482; 19 Fed. R. Serv. 222; 1985 U.S. App. LEXIS 23309Docket: 84-3063

Court: Court of Appeals for the Ninth Circuit; September 26, 1985; Federal Appellate Court

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Carlo Scott Bagley was convicted of bank robbery under 18 U.S.C. § 2113(a) after a jury trial. He appeals his conviction, citing multiple alleged errors in pretrial and trial proceedings, but the court affirms the conviction. On October 31, 1983, a lone black male robbed the Peninsula Branch of the First Interstate Bank in Oregon, obtaining $500, including bait bills. The bank manager observed the robbery and the suspect's getaway in a gold-colored automobile. 

Following the robbery, the manager and teller reported the incident, providing descriptions of the suspect and the car, which were relayed to nearby police. Officer Stolley spotted a vehicle matching the description and followed it, noticing a black male driver resembling the robber. Officer Frater, driving in the opposite direction, also observed the same vehicle. The driver parked the car and fled on foot between houses, prompting the officers to return to the vehicle.

The Buick was parked legally, locked, and registered to Marjorie and Anthony Akers. The bank manager later identified it as the getaway car, noting sunglasses and gloves inside that matched the robber's description. Officer Ault entered the vehicle without conducting a full search, ultimately ordering it towed shortly after. Concurrently, the FBI was investigating the robbery and began surveilling Bagley, who was already a suspect in prior robberies.

FBI agents observed Bagley arriving at his residence as a passenger in a car driven by Chris Pennington. After Bagley entered his house, Agent Snow displayed photographic arrays to the bank manager and police officers, leading to the identification of Bagley as the robber and his photograph as that of the Buick's driver. At approximately 1:30 p.m., agents detained Bagley as he exited his house and transported him to the bank, where a teller hesitantly identified him as the robber. Three days later, a search of the Buick yielded reddish-pink sunglasses, gloves, documents with Bagley's fingerprints, and $500 in cash, including bait bills.

Bagley filed a motion in limine to exclude impeachment with prior robbery convictions, which the district court denied. Although he conceded the admissibility of his forgery convictions, he contested the use of his robbery convictions on appeal. The court referenced United States v. Cook, establishing that a defendant can preserve the right to challenge a ruling on prior convictions without testifying, provided they outline their intended testimony. Bagley indicated he would testify about purchasing and selling the getaway car before the robbery and deny involvement in the crime.

However, following the Supreme Court's ruling in Luce v. United States, which requires a defendant to testify to preserve such claims, Bagley’s appeal was complicated by his failure to testify at trial. Consequently, the court found that Bagley's claim of error regarding the denial of his motion in limine did not demonstrate that a substantial right was prejudiced, making it unnecessary to decide if Luce should apply retroactively in this case.

Fed. R. Evid. 609(a)(1) mandates that the probative value of a prior conviction be weighed against its prejudicial effect on the defendant. The prosecution must demonstrate that the probative value exceeds the prejudicial impact. Key factors for a district court to consider include the impeachment value of the prior crime, the time elapsed since the conviction, the similarity to the charged offense, the significance of the defendant's testimony, and the importance of credibility issues. Rulings under this rule are reviewed for abuse of discretion, and reversal is required only if a substantial right of the defendant is prejudiced.

In this case, the district court improperly found that the government met its burden regarding the admission of Bagley's prior robbery convictions, which had low impeachment value and potentially overwhelming prejudicial impact. The court noted that impeachment is meant to challenge witness credibility, not to imply guilt. Unlike previous cases where the defendant's intent to misrepresent character justified admitting prior convictions, there was no evidence that Bagley intended to testify falsely. Additionally, allowing evidence of a prior conviction for the same crime charged poses a significant risk of bias, as jurors may irrationally conclude that a prior offense indicates guilt in the current trial.

The government's need for Bagley’s robbery convictions for impeachment purposes was minimal, given that his credibility could have been challenged through his two forgery convictions. The robbery convictions served primarily to suggest to the jury a pattern of criminal behavior. The district court's denial of Bagley’s motion in limine was deemed an abuse of discretion; however, the error was considered harmless since Bagley did not demonstrate that a substantial right was prejudiced. To establish this, he needed to show that he would have testified if not for the ruling, the content of his testimony, and that it would likely have influenced the jury's verdict. Bagley met the first two criteria but failed to prove that his uncorroborated testimony would have changed the outcome. His defense claimed he sold a car before the robbery and was jogging during the incident, but he presented no evidence or witnesses to support his alibi, nor did he call the driver who took him home post-robbery.

Even without the prior robbery convictions, Bagley’s testimony would have faced impeachment from his forgery convictions and the weight of identification testimony from four prosecution witnesses. Given the significant weaknesses in his alibi and the overwhelming evidence against him, it was unlikely the jury would find him credible. The ruling on the Rule 609 motion was therefore likely harmless.

Regarding Bagley’s motion to suppress, evidence such as sunglasses, gloves, stolen money, and fingerprints were found during a warrant-based search of a Buick after it had been impounded. Bagley did not contest the sufficiency of the search warrant affidavit but argued that the initial seizure of the automobile was unconstitutional, lacking a warrant and exigent circumstances. This claim was reviewed as a mixed question of law and fact under a de novo standard. The government countered that Bagley had no legitimate expectation of privacy in the vehicle, a point raised for the first time on appeal, linked to his alibi defense.

Bagley claimed he sold the automobile before the robbery and was not in possession of it during the crime. The government countered that he lacked a legitimate expectation of privacy in the vehicle, arguing he was the driver on the day of the robbery, a position it successfully asserted at trial. However, the court rejected the government's argument that Bagley's trial strategy negated his expectation of privacy, noting that the government waived its right to challenge this expectation on appeal. The court found that merely asserting non-ownership does not establish ownership or possession, and since the jury inferred Bagley was in possession of the getaway car, he maintains a legitimate expectation of privacy in it.

The district court had previously ruled on the legality of the automobile's seizure, citing the need for probable cause and exigent circumstances as outlined in United States v. Spetz. The district court determined the police had probable cause to believe the vehicle contained evidence of the robbery and that Officer Stolley's pursuit of Bagley constituted a functional equivalent of an 'in transit' stop. Additionally, the court found exigent circumstances justified the warrantless seizure, as there was concern that Bagley or the registered owners might remove the car before a warrant could be obtained. Bagley challenges these conclusions regarding the stop and exigent circumstances.

Towing an automobile to a police lot qualifies as a seizure under the Fourth Amendment. Generally, a search or seizure without a warrant based on probable cause is considered unreasonable, with limited exceptions. One significant exception is the "automobile exception," first established in Carroll v. United States. In subsequent cases, including Cardwell v. Lewis, the Supreme Court confirmed that police may conduct warrantless seizures of vehicles parked in public if they have probable cause and need to act quickly to prevent evidence from being destroyed. However, in United States v. Spetz, the court did not adopt a broad rule from Cardwell regarding the automobile exception for cars parked legally in public. Instead, it maintained that a clear directive from the Supreme Court would be necessary to change the requirement of both probable cause and exigent circumstances for such seizures. The Supreme Court later clarified this directive in California v. Carney, which allowed warrantless searches of vehicles parked in public based solely on probable cause, emphasizing the inherent mobility of vehicles and the reduced expectation of privacy associated with them. The court stated that regulatory schemes and the exigencies of mobility justify warrantless searches as long as probable cause is established.

Probable cause alone is sufficient to justify the warrantless search or seizure of a vehicle parked in a public place, as established in California v. Carney. This decision requires the rejection of previous interpretations of the automobile exception in United States v. Spetz and United States v. Connolly. In the current case, police had probable cause to seize a Buick associated with a robbery, as it was identified by an eyewitness shortly after the crime and contained sunglasses matching those worn by the robber. The seizure was consistent with the Fourth Amendment.

Additionally, even if the Spetz rule were applied, exigent circumstances justified the prompt removal of the vehicle from the public street, countering Bagley’s claim of mere generalized fear regarding potential movement of the car. The circumstances met the exigency requirement of the automobile exception.

Furthermore, even if the seizure were deemed unlawful, the items found in the vehicle would not be subject to suppression because they were obtained through a search warrant unrelated to the seizure of the car. Thus, the exclusionary rule does not apply.

The district court properly denied Bagley’s motion to suppress evidence obtained from the automobile. Regarding trial errors, Bagley challenged the identification testimony of several witnesses, arguing that the pretrial identification procedures were impermissibly suggestive. The constitutionality of these procedures is reviewed de novo, with the potential for suggestive methods to taint subsequent identifications being assessed based on the totality of the circumstances.

A challenged identification procedure is deemed acceptable if it is not impermissibly suggestive; if it is, the inquiry continues to assess the reliability of the identification rather than automatically excluding the testimony. Reliability is evaluated by weighing the factors that contribute to it against the suggestive nature of the procedure. Key factors include the witness's opportunity to view the perpetrator, their attention level, the accuracy of their prior description, their certainty during identification, and the time elapsed between the crime and the identification.

In this case, following a robbery, Bagley was apprehended and presented to the bank teller for identification shortly thereafter. The teller, observing Bagley in a police vehicle and hearing his voice, identified him as the robber without any suggestion from law enforcement. Prior case law supports the legitimacy of such a show-up identification.

The court determined that this identification procedure was appropriate, negating the need to further assess its reliability. Thus, the district court correctly admitted the teller's identification testimony. Bagley's additional challenge regarding the photographic display used for the bank manager and Officer Frater is noted, focusing on both the content and method of the display as potentially impermissibly suggestive.

Photographic identification procedures that focus on a single individual heighten the risk of misidentification, as established in case law such as Simmons v. United States. Convictions based on in-court identifications following suggestive pre-trial photographic identifications may be overturned if they create a substantial likelihood of misidentification. In the case of Bagley, the photographic display was challenged but did not exhibit suggestiveness, as Bagley did not argue that the initial group of mug shots was suggestive. Instead, his concern arose from his photograph's repetition in a second group that included surveillance images from bank robberies, which raised issues about his potential admission of involvement in the robbery.

The court evaluated the photographic sets and determined that they were not impermissibly suggestive. Bagley's claim that the sequence of photographs presented to the bank manager was suggestive was dismissed, as there was no evidence of improper influence from Agent Snow or Officer Frater. Furthermore, while Bagley argued that Officer Frater's observation of the bank manager selecting his mug shot could have biased the identification, the court noted that joint viewing is generally disapproved, but found that the identification process in this case did not constitute an impermissible procedure. Consequently, the court upheld the admissibility of the bank manager's identification testimony.

The district court determined that Officer Frater's identification testimony was reliable despite concerns about the suggestiveness of the pretrial identification procedure. Officer Frater, an experienced officer, had a clear view of the suspect, Bagley, and independently identified him during the photographic display, asserting that his identification was not influenced by the bank manager's choice. Consequently, the court rejected Bagley's due process claim regarding the admission of identification testimony from the teller, bank manager, and Officer Frater, leaving the jury to assess the weight of this testimony.

Regarding allegations of prosecutorial misconduct, Bagley contended that comments made by the prosecutor during closing arguments infringed on his right to a fair trial. Specifically, the prosecutor questioned the absence of evidence supporting Bagley’s defense, which Bagley argued violated his Fifth Amendment rights by implicitly referencing his failure to testify. However, it was determined that the prosecutor's comments were appropriate responses to the defense's arguments and did not explicitly call attention to Bagley's silence or imply a failure to testify. Thus, the comments were not considered erroneous under established legal standards.

The prosecutor's rebuttal comments addressed the defense's argument regarding alternative uses of a Buick, clarifying that they did not imply the defendant's failure to testify nor were they interpreted as such by the jury. Bagley objected to comments about a "conspiracy to get Bagley," acknowledging they did not violate his Fifth Amendment rights but claiming they were prejudicial enough to warrant a new trial. The comments were contextualized as a response to defense claims that the identification of Bagley was manipulated. The court found no plain error in the prosecutor's closing arguments, affirming that both attorneys were vigorous in their roles, with the prosecutor appropriately countering the defense's narrative. Bagley's motion to exclude prior robbery convictions for impeachment was denied, and despite referencing an earlier Supreme Court ruling on harmless error, the court concluded the error was harmless in this instance. Bagley had previously challenged the legality of Officer Ault's entry into the Buick but did not pursue this on appeal, resulting in a waiver of the claim. The Buick was towed before Bagley's arrest, and he had the opportunity to exit the residence undetected. Bagley also moved to suppress identification testimony prior to the trial, but the court ruled it admissible, which Bagley conceded on appeal.