United States v. Thomas Hayes ( 1997 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 96-3617
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United States of America, *
*
Plaintiff-Appellee, *
*
v. *
*
Thomas Hayes, *
*
Defendant- *
Appellant. *
___________ Appeals from the United
States
District Court for the
No. 96-3715 District of Nebraska.
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United States of America, *
*
Plaintiff-Appellee, *
*
v. *
*
Georgianna Top Bear, *
*
Defendant-Appellant. *
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Submitted: March 11, 1997
Filed: July 15, 1997
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Before McMILLIAN and HANSEN, Circuit Judges, and MAGNUSON,1
District Judge.
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HANSEN, Circuit Judge.
Thomas Hayes and Georgianna Top Bear appeal their criminal
convictions of armed bank robbery and conspiracy to commit bank
robbery. Hayes and Top Bear both contend that the district
court2 erred by denying their motions to reveal the identity of
a government witness. Additionally, Top Bear argues that the
district court erred by denying her motion to suppress evidence
and that the evidence was insufficient to support her
convictions. We affirm.
I. Background
An indictment charged Hayes and Top Bear with armed
robbery, in violation of 18 U.S.C. § 2113(a), (d) (1994), and
conspiracy to commit bank robbery, in violation of 18 U.S.C.
§ 371 (1994). Viewing the evidence at trial in the light most
favorable to the verdict, see United States v. Johnson, 114
F.3d 808, 812 (8th Cir. 1997), the jury could have found the
following facts. On October 20, 1995, the Farmers and
Merchants State Bank in Niobrara, Nebraska, was robbed by an
individual wearing a brown trench coat, a dark ski mask that
completely covered the face, faded blue jeans, and white tennis
shoes. Two tellers, a bank vice president, and two customers
were present during the robbery, and all described the robber
1
The HONORABLE PAUL A. MAGNUSON, Chief Judge, United States
District Court for the District of Minnesota, sitting by designation.
2
The Honorable William G. Cambridge, Chief Judge, United States District
Court for the District of Nebraska.
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as a woman. At one point, the robber held a black handgun to
the head of the bank vice president. The robber brought
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two garbage bags into the bank and dropped one at the scene.
In total, $4,680 was taken.
One customer, Jimmy Dean Robinette, heard the robber’s
voice, believed it was familiar, and described the robber as
having a Native American dialect. When the robber fled in a
maroon mini van, Robinette pursued the robber and followed the
mini van out of town. At the edge of town, the van turned
south and a Ford Tempo pulled in front of Robinette, also
apparently following the mini van. Robinette recognized the
driver of the Tempo as Thomas Hayes, a patron of the bar that
Robinette owned. At that moment, Robinette realized that the
voice he recognized during the bank robbery was that of Hayes’
wife, Georgianna Top Bear, who also was a patron of Robinette’s
bar. Robinette was unable to keep up with the mini van and
returned to town to report the names of the persons he believed
were involved in the robbery.
Chief Deputy Don Henery heard a radio broadcast advising
that the bank had been robbed and that the robber was driving
a maroon mini van south of town. He also heard the report that
Thomas Hayes and Georgianna Top Bear were suspects. Henery
knew Hayes and Top Bear were married, and he knew where they
lived on rural tribal trust land. Henery drove to their
residence and observed Hayes drive up in a Ford Tempo. When
Hayes saw the deputy, he immediately drove away. Henery
followed Hayes, who led Henery on a high-speed chase. After
driving the Tempo off a four- to six-foot embankment, Hayes
finally stopped his car. Hayes had his 2 ½-year-old daughter
in the car with him. Hayes told Henery that he fled because
he had a can of beer in the car, in violation of the terms of
his probation for a prior felony conviction. Hayes consented
to a search of his car. The search produced two stocking
masks, gloves, and an empty BB gun box bearing a picture of a
replica .45 caliber pistol. Officers found a Wal-Mart receipt
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for a makeup kit, another Wal-Mart receipt for an air pistol,
and yet another Wal-Mart receipt for a three-hole mask and
gloves -- all purchased on the morning of the robbery. Also,
officers found a pawn ticket, documenting the pawn of Hayes’
trailer home and several movies for $72 at a pawn
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shop located a few minutes away from the only Wal-Mart store
in Yankton, South Dakota. According to the pawn shop owner,
Hayes had pawned these items early on the morning of the
robbery.
The same day, law enforcement officers secured a search
warrant for the home of Hayes and Top Bear. During the search,
officers seized a box of garbage bags and a loose bag found on
the floor. At approximately 11:00 p.m., Top Bear arrived at
the residence with a friend, Paula Larson. While an agent was
explaining the procedure, that is, that he would be asking her
to explain her whereabouts during the day, Top Bear offered
that she had been in Yankton, South Dakota, during the day.
She was eventually taken to the county jail, where she provided
officers with two handwritten confessions, both of which were
suppressed by the district court, because she had requested
counsel and a government agent had initiated the subsequent
contact which led to the confessions.
Paula Larson testified that Top Bear arrived at her home
on foot at approximately 9:30 p.m. Top Bear told her that she
had been driving her mother’s car, experienced car trouble near
Lynch, Nebraska, and had walked from there to Larson’s home
(approximately 30 miles). Top Bear’s clothing was wet and
dirty. Larson gave her some dry clothing and offered to drive
Top Bear home. Larson gathered up Top Bear’s dirty clothing
and put them in grocery bags. When they approached Top Bear’s
home, they saw lights and police cars at the premises. Top
Bear told Larson, “Just keep going.” (Trial Tr. at 401.)
Larson drove past the residence, but they decided to return.
Top Bear said, “I might as well go back and face it.” (Id.)
Top Bear left the clothing in Larson’s car. Larson asked Top
Bear if she wanted the clothing, and Top Bear said she did not.
Larson permitted the officers to search her vehicle. Law
enforcement officers seized the clothing from Larson’s car, and
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the district court denied Top Bear’s motion to suppress this
evidence.
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At trial, Top Bear’s mother, Mrs. Red Blanket, testified
that Top Bear had not borrowed her car on October 20, 1995,
contrary to what Top Bear had told Larson. Mrs. Red Blanket
had not owned a car since March of that year. She further
testified that Top Bear had called her after being arrested and
requested her to provide a false alibi. Top Bear asked her
mother to tell the police that they had been together at
Winner, South Dakota, on the day of the robbery. In fact, Mrs.
Red Blanket had not been with Top Bear at all on that day.
The money from the robbery was not found until April 5,
1996. A heavy equipment operator found the money in a red and
white cooler, lying in a roadside ditch south of Niobrara where
he was grading the road. He had spotted the cooler when he was
grading the road in early November as well but had not stopped
to pick it up at that time. The cooler also contained a can
of peanuts and some other small items. A fingerprint expert
examined the can of nuts and determined that fingerprints on
it matched those of Georgianna Top Bear.
On the evening before the robbery, Ted Harris’s maroon
mini van was stolen from the parking lot of a bar in Lindy,
Nebraska, which is approximately 15 miles from Niobrara.
Harris immediately reported the van stolen and said that at the
time of its theft, a pair of leather gloves and an empty red
and white square cooler were inside the van. The mini van was
found the day after the robbery in a building on an abandoned
farm lot, approximately four or five miles south of Niobrara.
Hair samples were taken from the van, but none matched the
known hair samples of Top Bear or Hayes.
The United States provided the defendants with
investigative reports concerning this case. Included was an
FBI report containing a witness’s statement that three men had
contacted him about participating in a future bank robbery in
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Niobrara. The three men allegedly involved were named in the
report, but the witness was not identified. Two days after the
trial of this case had commenced, Hayes and Top Bear filed a
motion to reveal the identity of the witness. The district
court denied the motion,
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holding that it was not timely and that the defendants had made
an insufficient showing that the evidence would be exculpatory.
The jury convicted both defendants on both offenses. The
district court sentenced Top Bear to a term of imprisonment of
88 months on the armed robbery count and a concurrent 60-month
term of imprisonment on the conspiracy count. Hayes was
sentenced to a term of 121 months of imprisonment on the armed
robbery count and a concurrent 60-month term on the conspiracy
count. Both defendants appeal.
II. Discussion
Hayes and Top Bear argue that the district court erred in
denying their motion to require the government to reveal the
identity of an informant. The informant had reported to the
FBI that three named individuals had discussed with him the
idea of robbing the Niobrara bank. The defendants contend that
the government’s refusal to disclose the identity of the
informant violated their due process rights as articulated in
Brady v. Maryland, 373 U.S. 83 (1963). The district court
denied the motion to compel disclosure, first noting that the
motion was untimely. The information that this witness had
identified three possible suspects and given their names was
provided to the defendants in November 1995, and the defendants
did not move for disclosure of the witness’s identity until
June 19, 1996 -- the second day of trial. Second, the district
court concluded that there was not a sufficient showing that
the government had withheld any material exculpatory evidence.
The government must disclose to the defense all evidence
that is “favorable to an accused” and “material either to guilt
or to punishment,” Brady, 373 U.S. at 87, including both
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exculpatory and impeachment evidence, regardless of whether the
defendant requests the information, United States v. Bagley,
473 U.S. 667, 682 (1985). Kyles v. Whitley, 514 U.S. 419, 432-
34 (1995); United States v. Gonzales, 90 F.3d 1363, 1368 (8th
Cir. 1996). For evidence to be considered material, there must
be “a
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reasonable probability” that its disclosure would have altered
the result of the proceeding. Bagley, 473 U.S. at 682; United
States v. Harrington, 951 F.2d 876, 878 (8th Cir. 1991).
“[D]isclosure may be required where a defendant shows that it
would be relevant and helpful to the defense or essential to
a fair trial.” United States v. Bourbon, 819 F.2d 856, 859
(8th Cir. 1987) (citing Rovario v. United States, 353 U.S. 53(1957)). Generally, it is not material to the outcome of a
case to disclose the identity of informants “who merely convey
information to the government but neither witness nor
participate in the offense.” Harrington, 951 F.2d at 878; see
Bourbon, 819 F.2d at 860.
We conclude that the district court did not err in denying
the defendants’ motion to disclose the identity of the
informant in this instance. In November 1995, the government
timely produced the report of the FBI’s interview with an
unidentified informant who provided the names of three possible
suspects for the robbery, none of whom were Hayes or Top Bear.
Pretrial motions were scheduled to be filed by the end of
December 1995. While the defendants timely filed some pretrial
motions, they did not seek to compel the government to disclose
the identity of the confidential informant until two days after
the start of their trial in June 1996. The defendants offered
no good cause for waiting six months to request this alleged
Brady material. We agree with the district court’s conclusion
that the motion was untimely. Furthermore, the identity of
this particular informant, who neither witnessed nor
participated in the robbery at issue in this case, is not the
type of evidence that the government is compelled to produce.
The defendants made no showing that disclosure of this
informant’s identity was material to the outcome of their case.
They were provided with the names, addresses, dates of birth,
social security numbers, and criminal histories of each suspect
identified by the informant. They offered no explanation
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concerning why the information provided was insufficient or
what more they expected to learn from the informant. There
simply was no showing to indicate a reasonable probability that
disclosure of this informant’s identity would have changed the
outcome of the trial. Thus, we conclude
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that the district court did not err in denying the defendants’
motion to compel disclosure of this informant’s identity.
Georgianna Top Bear challenges the district court’s
partial denial of her motion to suppress evidence and
statements allegedly obtained in violation of the Fourth and
Fifth Amendments. Adopting the report and recommendation of
the magistrate judge, the district court denied Top Bear’s
motion to suppress the clothing seized from Paula Larson’s car,
concluding that she had abandoned them and therefore lacked
standing to challenge the seizure. Top Bear argues that she
did not abandon her clothing but retained a privacy interest
in them.
“The touchstone of Fourth Amendment analysis is whether a
person has a ‘constitutionally protected reasonable expectation
of privacy.’” California v. Ciraolo, 476 U.S. 207, 211
(1986) (quoting Katz v. United States, 389 U.S. 347, 360 (1967)
(Harlan, J., concurring)). To prevail on her motion to
suppress the clothing, Top Bear had the burden to demonstrate
(1) that she had a subjective expectation of privacy -- a
question of fact which we review under a clearly erroneous
standard; and (2) that her subjective privacy expectation was
objectively reasonable -- a question of law, which we review
de novo. Ciraolo, 476 U.S. at 211; United States v. Stallings,
28 F.3d 58, 60 (8th Cir. 1994); United States v. Kiser, 948
F.2d 418, 423 (8th Cir. 1991), cert. denied, 503 U.S. 983(1992). We are persuaded that the district court did not
clearly err in determining that Top Bear abandoned her
expectation of privacy in the bag of clothing. She wore the
clothing to Larson’s residence and there discarded them,
leaving them lying about. Larson picked them up and placed
them in the bag, but Top Bear was not interested in taking the
bag with her when she left Larson’s vehicle. Thus, Top Bear
offered no facts to indicate that she retained any expectation
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of privacy in the item seized, and absent a legitimate
expectation of privacy, Top Bear had no standing to challenge
the seizure of the clothing. Stallings, 28 F.3d at 60 (holding
defendant must have legitimate expectation of privacy in the
place searched or the item seized to have standing to challenge
the search or seizure under the Fourth
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Amendment). Likewise, Top Bear lacked standing to challenge
the search of Larson’s car. See United States v. Muhammed, 58
F.3d 353, 355 (8th Cir. 1995).
The district court also denied Top Bear’s motion to
suppress her statement that she had been in Yankton, South
Dakota, on the day of the robbery. We review de novo the
denial of a motion to suppress. United States v. Weinbender,
109 F.3d 1327, 1329 (8th Cir. 1997). “However, ‘a reviewing
court should take care both to review findings of historical
fact only for clear error and to give due weight to inferences
drawn from those facts by resident judges and local law
enforcement officers.’” Id. (quoting Ornelas v. United States,
116 S. Ct. 1657, 1663 (1996)). The district court found that
Top Bear volunteered her statement that she had been in Yankton
that day. The district court found that she made this
statement while FBI Special Agent Birnie was explaining the
procedure to her and before he had advised her of her rights
under Miranda v. Arizona, 384 U.S. 436 (1966). Thus, the court
concluded that the statement was not obtained in violation of
Miranda. The district court’s findings are not clearly
erroneous. Special Agent Birnie had not yet asked Top Bear to
explain her whereabouts during the day. He explained that he
wanted to ask her some questions concerning the events of the
day and asked her to step inside so he could advise her of her
rights before questioning her. When Top Bear then announced
that she had been in Yankton, prior to any actual questioning,
Special Agent Birnie immediately stopped her and advised her
of her rights. (See Motion to Suppress Tr., Jan. 24, 1996, at
28-29.) “Miranda does not protect an accused from a
spontaneous admission made under circumstances not induced by
the investigating officers or during a conversation not
initiated by the officers.” United States v. Hawkins, 102 F.3d
973, 975 (8th Cir. 1996) (internal quotations and citations
omitted), cert. denied, 117 S. Ct. 1456 (1997). We conclude
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that Top Bear’s statement about having been in Yankton that day
was not obtained in violation of Miranda, and the district
court did not err by denying her motion to suppress the
statement.
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Finally, Top Bear contends that the evidence was
insufficient to support the jury verdicts finding her guilty
on both counts. We disagree. “To decide whether the evidence
is sufficient to support a verdict, the court views the
evidence in a light most favorable to the verdict and accepts
all reasonable inferences favorable to the [verdict] that
logically can be drawn from the evidence.” Johnson, 114 F.3d
at 812. We reverse a verdict for lack of sufficient evidence
“only when a reasonable fact finder could not have found the
defendant guilty beyond a reasonable doubt.” Id. We recited
the facts in the light most favorable to the verdict above.
Top Bear points out minor discrepancies in the eye witness
accounts and attacks the credibility of Robinette’s testimony.
Even where a defendant presents ample evidence from which a
jury could have found her not guilty, however, “the law is well
established that it is the jury’s function to evaluate the
credibility of witnesses.” Id. Our review of the record
convinces us that the evidence is sufficient to support the
jury verdicts in this case.
III. Conclusion
For the reasons stated above, we affirm the judgment of
the district court.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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