ENRIGHT, District Judge:
Appellant was indicted and tried in district court for violation of 18 U.S.C. § 2113(a), (d), robbery of a national bank with a dangerous weapon. Trial before a jury resulted in a guilty verdict of the lesser included offense of robbery without the use of a dangerous weapon. Appellant now attacks this conviction and seeks reversal, claiming five instances of prejudicial error in his trial below.
The government's case in chief consisted of seven eye-witnesses, all of whom identified the appellant as the bank robber, and photographic evidence provided by surveillance cameras located in the bank. Four enlarged photographs from these cameras were shown to the jury, along with a number of police photographs of the appellant. A photographic expert then testified for the government that in his "expert opinion," the individual in the surveillance camera photographs could be the defendant.
The defendant testified in his own defense that he was at a friend's house in another city at the time of the robbery, and denied any participation in the robbery. During cross-examination, the prosecution attempted to impeach the defendant by questions concerning a hand gun and a briefcase as depicted in certain photographs. After a negative response, the government introduced evidence that a gun and briefcase had been earlier seized from defendant's home in what was conceded to be an illegal search and seizure. The defendant explained that the gun and briefcase were not similar to the items depicted in the photographs, and an innocent reason existed for their presence, i. e., that he had taken the gun from a person at a "fund-raiser" picnic.
The appellant contends that the court erred when it failed, sua sponte, to instruct the jury to consider eye-witness testimony with caution. Defense counsel did not request such an instruction, nor was an objection raised to the instructions as were given. Under these circumstances, absent clear error affecting the substantial rights of the defendant, the instructions cannot now be attacked on appeal, and no such showing has been made here. United States v. Lipsey, 438 F.2d 974, cert. denied 404 U.S. 824, 92 S.Ct. 50, 30 L.Ed.2d 52 (9th Cir. 1971); United States v. Alvarez, 469 F.2d 1065 (9th Cir. 1972); Fed. Rules Crim.Proc. 30. Moreover, even if requested, the trial court would have acted properly in refusing to give such an instruction. See Cullen v. United States, 408 F.2d 1178 (8th Cir. 1969). Considering the instructions as given in their entirety, as we must, Medved v. United States, 411 F.2d 617 (9th Cir. 1969), there was no error in the instructions as given.
Two witnesses observed the bank robber enter the passenger side of a Volkswagen and make his escape. This escape vehicle was later ascertained to be registered to one Rudy Cabral, Jr., who was present during appellant's trial. Upon cross-examination of one of the witnesses who saw the escape, defense counsel attempted to ascertain if the witness could identify Mr. Cabral as the driver of the getaway car. The trial court, considering that this was examination into collateral matters, and after balancing the rights of appellant against those of Mr. Cabral, ruled against permitting such inquiry. It has been the consistent position of this court that the trial judge has broad discretion in the admission of testimony relating to collateral matters. Enciso v. United States, 370 F.2d 749 (9th Cir. 1967). The ultimate issue at the trial was the identity of the appellant as the bank robber, to which the identity of the driver of the escape vehicle was clearly collateral. The court did not abuse its discretion in disallowing such cross-examination.
In the investigation that followed the robbery, seven eyewitnesses were shown surveillance photographs taken at the bank to determine if the photographs actually depicted the bank robber.
Later, when the inquiry focused on the appellant, his photographs were placed with photographs of other individuals in a series of "photo spreads." These photo spreads were shown to six of the seven witnesses to determine if the appellant could be identified by the witnesses as the bank robber.
Appellant now raises the contention that this pretrial identification by the witnesses was conducted in such an improper manner as to compel the witnesses to identify the appellant at trial, thereby depriving him of due process of law. There were two photo spreads that were shown to the witnesses. One spread consisted of nine photographs, two of which were of the appellant. The second spread consisted of six photographs, one of which was of the appellant. Each witness who was shown one of these photo spreads selected one or more of the photographs of the defendant as the bank robber. Two of the witnesses were in the same room when they made the identification, and were told that they had chosen the "correct" photograph after they chose the defendant's picture. These same two witnesses, along with another witness, were told that a suspect had been taken into custody before being shown the photo spread. Six of the witnesses viewed the photo spreads again a day prior to trial.
Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247
Moreover, as no objection was made at trial, this contention is not properly before this court unless we can say, in the sound exercise of our discretion, "plain error" exists. Davis v. United States, 425 F.2d 673 (9th Cir. 1970), Fed.Rules Crim.Proc. 52(b). The "plain error" rule should be invoked only in exceptional cases where it appears to be necessary in order to prevent a miscarriage of justice or to preserve the integrity and reputation of the judicial process. United States v. Sheley, 447 F.2d 455 (9th Cir. 1971). Such is not the case here. Trial counsel, when specifically given the opportunity to pursue such an objection, declined further inquiry.
As part of its case, the government called as an expert witness Mr. Frederick E. Webb, an FBI photographic identification expert. He compared four photographs taken by the bank's surveillance camera at the time of the robbery with four police photographs of appellant and one photograph of appellant obtained from the California Driver's License Bureau. All the photographs had been enlarged so that the head size would be the same to facilitate comparison. Mr. Webb pointed out that in all the photographs, the shape of the face, nose, mouth, and hair were similar. He admitted that the surveillance photographs were not clear enough to allow a positive identification, but stated that the features of the appellant were not inconsistent with the general facial characteristics discernible in the surveillance photographs. He concluded that all the photographs could possibly be of the same individual.
Appellant contends that the admission of this testimony was prejudicial error, as it invaded the province of the jury. During the trial, defense counsel objected to the admission of this testimony as ". . . an ultimate fact to be determined by the jury whether or not the man in the picture taken during the robbery is the defendant. . . ." (R.T. 304). The trial court concluded that it was bound by this court's decision in United States v. Cairns, 434 F.2d 643 (9th Cir. 1970), holding ". . . With respect to the ultimate fact argument, we are ourselves bound by United States v. Cairns, a decision that appears to be directly and positively in point . . . Frankly, I don't think we have any discretion at this stage to overturn the Ninth Circuit." (R.T. 305).
In Cairns, this court stated:
434 F.2d at 644.
Appellant took the stand and testified in his own defense. His direct testimony consisted of a general denial of the crime, and an assertion of an alibi defense. Upon cross-examination, the prosecutor asked appellant if he owned or had ever owned a pistol and a briefcase as depicted in a surveillance photograph. The response was negative, whereupon the government introduced the fact that a pistol and a briefcase had been found in appellant's home two days after the robbery in what was admitted to be an illegal search and seizure. The appellant was allowed to explain that the briefcase found in his home was not similar to the one in the photograph, and that he had taken the pistol from an "intoxicated youngster" at the fund-raiser the day after the robbery. Appellant now contends that it was improper to allow impeachment by the use of the illegally obtained gun and briefcase, when the government was foreclosed from introducing such evidence in its case in chief.
In Walder v. United States, 347 U.S. 62, 74 S.Ct. 354, 98 L.Ed. 503 (1954), the Supreme Court upheld the trial court where the government was allowed to introduce evidence of an earlier illegal seizure of heroin to impeach the defendant's direct testimony that he had never in his life sold or possessed narcotics. In its decision, the Court contrasted and distinguished its earlier decision in Agnello v. United States, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145 (1925), stating, "There the Government, after having failed in its efforts to introduce the tainted evidence in its case in chief, tried to smuggle it in on cross-examination by asking the accused the broad question, `Did you ever see narcotics before?' After eliciting the expected denial, it sought to introduce evidence of narcotics located in the defendant's home by means of an unlawful search and seizure, in order to discredit the defendant. In holding that the Government could no more work in this evidence on cross-examination than it could
Relying heavily upon Walder, the Supreme Court in 1971 decided Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1. In Harris, the Court allowed the government to impeach the direct testimony of the defendant by a statement which had not been obtained in conformity with Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). In affirming the conviction, the Court declined to be bound by dictum in Miranda,
Both Walder, Harris, as well as Agnello, were recently analyzed and discussed by the California Supreme Court in People v. Taylor, 8 Cal.3d 174, 104 Cal.Rptr. 350, 501 P.2d 918 (1972), a case with facts strikingly similar to the present case. In Taylor, the defendant's testimony on direct examination consisted of a denial of the factual elements of the charged crime of possession of heroin. On cross-examination, the state inquired if the defendant had ever seen narcotics before, and after eliciting the expected negative response, proceeded to introduce evidence of an earlier illegal search where heroin was found in the defendant's personal effects. The California Supreme Court rejected the concept that Harris allowed the government to introduce illegally obtained evidence whenever the defendant chose to take the stand to testify. Rather, the California court stressed that Agnello, Walder, and Harris were compatible and distinguishable from one another in that in both Walder and Harris, the illegally obtained evidence directly contradicted certain aspects of the defendants' direct testimony.
We find such reasoning persuasive and would decline to accept the concept that Harris now permits any illegally obtained evidence to be admitted for impeachment whenever a defendant takes the stand.
The judgment is affirmed.
KILKENNY, Circuit Judge (concurring):
I concur in the affirmance of the conviction, but not for the reasons stated by the majority. In particular, I do not agree with the limitations suggested by the majority on the breadth of Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971). While Harris may have some limitations, we should not attempt to define them on the record here presented.
In United States v. Davis, 447 F.2d 988 (9th Cir. 1971), the text of the entire per curiam opinion was:
In Brooks v. United States, 449 F.2d 1296 (9th Cir. 1971), the court stated, ". . . assuming arguendo illegal search, under Harris v. New York, the trial judge properly admitted the letter if it met trustworthy standards, which it would."