MURNAGHAN, Circuit Judge:
Defendants Larry Sinclair Williams and Wayne Edward Joyner were convicted of conspiracy to commit a bank robbery under 18 U.S.C. § 371, armed bank robbery under 18 U.S.C. § 2113(a) and (d), use of a firearm in relation to a crime of violence under 18 U.S.C. § 924(c), and possession of a firearm by a convicted felon under 18 U.S.C. § 922(g)(1). Defendant Williams was convicted of an additional count of armed robbery. Defendant Michael Wendell Best was convicted of conspiracy to commit bank robbery under 18 U.S.C. § 371 and possession of
The United States District Court for the Eastern District of Virginia, Alexandria Division entered the convictions under which Williams and Joyner were each sentenced to 562 months imprisonment and Best to 180 months.
Defendants appeal their convictions arguing, inter alia, that they were arrested without probable cause, that the evidence obtained as a result of the illegal arrest and subsequent search should have been suppressed, and that Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), requiring disclosure of material evidence favorable to defendants, should apply to pretrial suppression hearings. Finding that there was a substantial basis for the district court to conclude that probable cause to arrest existed and that the resolution of the Brady matter would not be relevant to the outcome of the case, we affirm the district court's decision.
The facts surrounding the arrest of the defendants on January 16, 1992 indicate that the police had probable cause to arrest the defendants.
Between November 1 and January 16, 1992, a series of bank robberies took place in the Arlington area. As of mid-January, investigating officers were looking for four black males in a white, four door, jeep-like vehicle who were suspected of committing the robberies. The robberies shared a common modus operandi including the use of firearms, similar procedures, and the use of latex gloves and ski masks with eye holes cut into them. Witnesses described four black males: one who waited in the car, one who guarded the entrance with a firearm, and two who went behind the counter to steal the money. Witnesses to the first five robberies identified a light colored Chevette-type vehicle, while witnesses to the January 7th robbery described a white, four door, Jeep-like automobile with a Maryland license plate. Two witnesses to the robbery on January 7th gave slightly different accounts of the perpetrators and the getaway car. A customer who was in the Crestar Bank on January 7th while it was being robbed was able positively to identify defendant Williams.
Donald Sneed, one of the four men arrested on January 16th but not a defendant at the trial, entered into a plea agreement with the government and testified to the conspiracy between the defendants to rob a bank sometime between January 14th and 16th. Sneed testified that he accompanied Williams, Joyner, and Best when they drove to Arlington to search for a bank to rob on the morning of the 16th. After casing First American Bank, Best and Williams agreed "it didn't feel right," so they decided to return to Washington, D.C.
While in Arlington, the defendants were in the vicinity of the Crestar Bank that was robbed on January 7th. Their car was identified by Ruth Kossler, the aunt of FBI agent Susan Kossler. Ruth Kossler called the FBI with a description of the white Mitsubishi Montero, the license plate number, and the whereabouts of the car. Catherine Catherwood, an investigating officer on the tactical squad, received the updated lookout from Corporal Bruce Hackert, also of the Arlington County Police, who told Catherwood that he had received the report from the FBI. Later that afternoon, Officer Catherwood spotted the white Mitsubishi Montero as it drove slowly past the First American Bank that she was surveilling. After observing the four men for a period of time, and calling for back-up, she and her fellow officers executed a vehicle breakdown stop of the Montero and arrested all four men.
Police officers can make warrantless arrests as long as they act on the basis of probable cause. Probable cause "to justify an arrest means facts and circumstances within the officer's knowledge that are sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown, that the suspect has committed, is committing, or is about to commit
Illinois v. Gates established the "totality of the circumstances" test for establishing probable cause to obtain a warrant when relying on an informant. Rejecting the two-prong Aguilar/Spinelli test,
The defendants argue that the police officers arrested them without probable cause. Their assertion is based on the following two arguments: 1) the tip on which Officer Catherwood relied came from Ruth Kossler, the aunt of an FBI agent, who was not a witness to any of the robberies, and the information was, therefore, unreliable; and 2) the government withheld testimony and evidence at the suppression hearing that would have undermined the judge's finding of probable cause.
The defendants' contentions do not undermine the district judge's finding of probable cause at the suppression hearing. First, the defendants have argued that the updated lookout based on information provided by the FBI agent's aunt was not obtained from an eyewitness to the robbery and was, consequently, unreliable. The conclusion does not follow from the premise. Reliable tips can be given by citizens other than those who witness crimes. Under Illinois v. Gates, the court may consider the informant's basis of knowledge, her veracity, and the reliability of her information. The court must consider the totality of the circumstances surrounding the arrest.
The court's finding of probable cause was based soundly on the following facts. An eyewitness to the January 7th robbery reported that he saw a white, four-door jeep-like vehicle with Maryland tags and a license plate with the numbers 382432-M leaving the
While surveilling the First American Bank, Catherwood watched the Montero approach in the lane closest to the bank. The Montero drove past the bank at approximately 15-20 miles an hour in a 30 m.p.h. zone. Most drivers on the street were going 35-40 m.p.h. All of the occupants of the Montero were looking in the direction of the bank as they passed. The First American Bank had been robbed previously. Catherwood pulled out and followed the Montero as it sped up, made a U-turn farther down the street, and passed the bank once more. Again, the Montero slowed to 15-20 m.p.h. as it passed the bank. All four occupants looked in the direction of the bank. Catherwood noted the striking similarity between the license plate number that had been reported earlier that morning and that which was reported by the eyewitness to the robbery. She pulled up beside the Montero to observe the occupants. Four black males occupied the car. The passenger in the front seat was wearing a reddish-orange wool ski hat with eye holes cut into it. As several other officers joined Catherwood both behind and in front of the Montero, she watched as the Montero slowed down once again on Washington Boulevard near the First Virginia Bank. All the occupants turned to look in the direction of the bank.
The defendants argue that "it is fundamental that a lawful arrest requires probable cause to arrest a particular person." It would be more accurate to say that a constitutional arrest warrant or search warrant requires a particularized description of the person or persons or things to be seized. Case law does not support the contention that a warrantless arrest must be supported by probable cause to arrest a particular single individual.
The defendants have argued that the government improperly withheld evidence relevant to the probable cause determination at the pre-trial suppression hearing. The failure to disclose material evidence violates Brady v. Maryland. Under Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215 (1963), "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution."
The defendants have made two arguments: 1) that in relying solely upon Officer Catherwood's
We have held that the police officers had probable cause to arrest the defendants in light of all of the evidence available to the officers at the time of the arrest including the information that the defendants claim was withheld improperly from the suppression hearing judge. Even if Brady were applicable in the context of a pretrial suppression hearing, application of the law to the facts of the instant case would not require a different result. The suppression hearing judge found Officer Catherwood's testimony credible. The evidence allegedly withheld by the government regarding conflicting eyewitness reports was not material to the determination of probable cause, nor was it relevant to guilt or punishment. In light of the inconsequential nature of the Brady case to these proceedings, we assume arguendo but decline to address definitively on the merits the issue of whether Brady should call for disclosure of material evidence at pre-trial suppression hearings.
Generally speaking, findings of fact at suppression hearings are accorded great deference and will not be disturbed unless they are clearly erroneous. United States v. Logan, 949 F.2d 1370, 1379 (5th Cir.1991), cert. denied, ___ U.S. ___, 112 S.Ct. 1982, 118 L.Ed.2d 580 (1992).
The defendants argue that the government violated Brady with respect to both Officer Catherwood's "misleading" testimony and the omission of testimony by Ruth Kossler during the suppression hearing. Contrary to defendants' assertions, Ruth Kossler did not make any exculpatory statements that could have shed doubt on the defendants' guilt. That argument is without merit.
Further, the defendants have mischaracterized Officer Catherwood's suppression hearing testimony. The defendants described Catherwood's testimony as follows,
In fact, Officer Catherwood testified that she received the information regarding the updated lookout initially from another officer, Corporal Hackert. The Corporal told her that he had received the information from the FBI. In response to a question by the trial judge regarding the source of the information, Catherwood said that, as of the date of the hearing, she understood that the information came from an aunt of an FBI agent that worked in the building next to the bank that was robbed. She did not know the source of the FBI's information until long after the arrest. The court asked if the aunt had witnessed one of the earlier robberies, and Officer Catherwood responded, "I believe so." Pressing her further, the Court asked, "And had she seen the previous vehicle?" Catherwood answered, "I believe so. I don't know that."
The defendants contend that the district court found probable cause solely on the basis of Catherwood's testimony and that the reliability of the report of a second sighting was "quite clearly the most important fact
The defendants argue that the trial court would have had little reason to find the arrest justified by probable cause had the trial court known that the updated lookout was not based on a second sighting by a witness of any of the previous robberies. In fact, the court did have reason to know that Catherwood was unsure about the status of the aunt who relayed the information to the FBI. She did not know who the source of the information was at the time she made the arrest. Her testimony is clear on those points. Whether the trial court understood the fact that the aunt may not have been an eyewitness is less clear. In his findings made pursuant to Federal Rule 12(c), the district judge made the following statement,
Although Catherwood stated during her testimony that she did not know whether the aunt was an eyewitness, the trial judge came out of the hearing with the impression that Ruth Kossler was, in fact, a witness to the previous robbery. The confusion would appear to result in an erroneous finding of fact. However, the judge found specifically that Catherwood did not learn that the aunt was the source of the FBI's information until "later on" — long after the arrest. The trial judge found that the police acted with probable cause even though Catherwood did not know who the source of the information was at the time she acted on that information. Whether or not Ruth Kossler was an eyewitness to the earlier robbery had not been established at the time of the arrest.
Fruit of the Poisonous Tree
The defendants argued that the physical evidence obtained from the defendants' vehicle on January 16th following the arrest should have been excluded at trial because the arrest was unlawful. As noted above, the arrest was based on probable cause and therefore lawful. The physical evidence obtained from the vehicle was lawfully obtained as a result of a search incident to an arrest. New York v. Belton, 453 U.S. 454, 460, 101 S.Ct. 2860, 2864, 69 L.Ed.2d 768 (1981); United States v. Taylor, 857 F.2d 210, 214 (4th Cir.1988).
We have considered the defendants' contentions 1) that the trial court erred by failing to grant defendants Joyner's and Williams' motion for continuance; 2) that Williams' conviction should be reversed because the government failed to produce, after demand, material discovery as required by the Jencks Act; 3) that the district court improperly failed to grant Williams' motion for severance and misjoinder of counts; and 4) that the court erred in refusing to grant Williams' motion to compel the government to produce samples of his hair that was analyzed by the government so that he could
1. Motion for Continuance
The district court did not abuse its discretion by denying defendants' motions for continuance after Joyner and Williams decided to proceed pro se. Pursuant to 18 U.S.C. § 3161(c)(2) (The Speedy Trial Act):
Appellants Williams and Joyner filed a motion dismissing counsel eleven days before trial. They filed a motion requesting a continuance, relying upon the language of § 3161(c)(2). United States v. Moya-Gomez, 860 F.2d 706, 741-42 (7th Cir.1988), cert. denied, 492 U.S. 908, 109 S.Ct. 3221, 106 L.Ed.2d 571 (1989), holds that the thirty day period prescribed by the statute is measured, exactly as the language of the statute indicates, from the moment the defendant chooses to proceed pro se or from the time the defendant first appears with counsel. Defendants first appeared with counsel on March 9, 1992. The trial judge denied their motion for a continuance on May 1. The defendants had eleven more days to prepare for trial, rendering a total preparation time of over two months. The judge specifically required counsel for the defense to remain available in an advisory capacity. The trial court's ruling on a motion for continuance is committed to the sound discretion of the trial judge, and the ruling will not be disturbed unless there is a clear showing of abuse of discretion. United States v. Darby, 744 F.2d 1508, 1521 (11th Cir.1984), cert. denied, 471 U.S. 1100, 105 S.Ct. 2322, 85 L.Ed.2d 841 (1985).
2. Material Discovery Under the Jencks Act
Under the Jencks Act, the government was not required to turn over witness statements during the suppression hearing. The Jencks Act provides in pertinent part:
The Jencks Act, 18 U.S.C. § 3500(a) (emphasis added). There is not a Jencks Act basis for requesting such materials prior to trial to avoid surprise. In United States v. Murphy, 569 F.2d 771 (3d Cir.), cert. denied, 435 U.S. 955, 98 S.Ct. 1588, 55 L.Ed.2d 807 (1978), the Third Circuit wrote "[t]he blunt command of the statute together with the unequivocal legislative history has led to unbroken precedent in the Courts of Appeals denying to district courts the power to compel production of the statements of government witnesses until conclusion of direct examination at the trial. Trial in this context means a proceeding being conducted for the purpose of determining guilt or innocence."
3. Severance and Misjoinder of Claims
Ordinarily, people who are indicted together are tried together. United States v. Clark, 928 F.2d 639, 644 (4th Cir. 1991). Rule 8(b) governs joinder. The test to determine whether joinder is permissible is whether defendants are alleged to have
The defendant bears the burden of showing that a joint trial would be so unfairly prejudicial that a miscarriage of justice would result. Brugman, 655 F.2d at 542-43.
Neither the defendants' claim for severance nor the claim regarding misjoinder has merit.
4. The Hair Sample
Appellant Williams' argument that the court erred in refusing the defendant the opportunity to conduct his own independent analysis of the hair sample is so lacking in merit that it does not warrant further discussion.
The police officers had probable cause to arrest the defendants. The subsequent search of their vehicle was lawful as a search incident to a valid arrest. The evidence obtained from that search was, therefore, admissible. We decline to address the issue of whether Brady v. Maryland should provide the rule of law applicable in the context of a pretrial suppression hearing.
Accordingly, the judgment is