United States v. Charles Allen Gipson , 387 F. App'x 761 ( 2010 )

FILED
NOT FOR PUBLICATION JUL 15 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-30301
Plaintiff - Appellee, D.C. No. 2:07-cr-02056-LRS-1
v.
MEMORANDUM *
CHARLES ALLEN GIPSON,
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of Washington
Lonny R. Suko, Chief District Judge, Presiding
Submitted July 13, 2010 **
Seattle, Washington
Before: RYMER and N.R. SMITH, Circuit Judges, and WALTER, Senior District
Judge.***
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Donald E. Walter, Senior United States District Judge
for Western Louisiana, sitting by designation.
Charles A. Gipson appeals his jury conviction for robbing the Wapato
branch of the Central Valley Bank (Wapato Branch). 18 U.S.C. § 2113(a). We
have jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.
As the government concedes, the Confrontation Clause was violated by the
admission of a declaration stating that an FDIC search revealed no record that the
Wapato Branch’s FDIC-insured status had been terminated. See Melendez-Diaz v.
Massachusetts, 129 S. Ct. 2527, 2538-40 (2009). However, assuming the issue is
preserved, this violation was harmless beyond a reasonable doubt, see United
States v. Norwood, 603 F.3d 1063, 1068-69 (9th Cir. 2010), and the government
met its burden of proving the Wapato Branch’s FDIC-insured status, see United
States v. Ware, 416 F.3d 1118, 1121-23 (9th Cir. 2005). The offending statement
was cumulative of other circumstantial evidence showing, beyond a reasonable
doubt, that the Wapato Branch was federally insured on the day of the robbery.
Moreover, Gipson presented no evidence contradicting the government’s records
and testimony, and he does not contend on appeal that this evidence was
improperly admitted.
Further, the district court did not abuse its discretion in admitting exhibits
comparing post-arrest photographs of Gipson with stills of the bank robber taken
from the security camera footage. “The admission of photographic evidence is
2
largely a matter of discretion for the trial judge.” United States v. May, 622 F.2d
1000, 1007 (9th Cir. 1980). First, these photographs were not altered as Gipson
claims. Second, the production of the photographs was thoroughly described to the
jury, so it was within the province of the jury to decide how much weight to give
this evidence. See Unites States v. Cruz-Garcia, 344 F.3d 951, 956 (9th Cir.
2003). Third, the jury had the originals to compare to the enlarged photographs, so
it could determine whether there had been improper manipulation. Cf. United
States v. Stubblefield, 621 F.2d 980, 983 (9th Cir. 1980) (“[T]he photographs
exhibited to the [government’s witnesses] depicted the perpetrators of the robbery.
Thus, any resemblance between the persons in the photographs and the defendants
not only was not impermissibly suggestive, but, in fact, was highly probative.”);
Manson v. Brathwaite, 432 U.S. 98, 116 (1977) (“We are content to rely upon the
good sense and judgment of American juries, for evidence with some element of
untrustworthiness is customary grist for the jury mill.”).
AFFIRMED.
3