UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
February 27, 1979
UNITED STATES OF AMERICA, APPELLEE,
EDWIN CHARLES FORTES, JR. AND SANDRA JEMISON, APPELLANTS.
Appeal from the United States District Court for the District of Connecticut
Present: HONORABLE WILFRED FEINBERG, HONORABLE JAMES L. OAKES, HONORABLE ELLSWORTH A. VAN GRAAFEILAND, Circuit Judges,
This cause came on to be heard on the transcript of record from the United States District Court for the District of Connecticut, and was argued by counsel.
ON CONSIDERATION WHEREOF, it is now hereby ordered, adjudged, and decreed that the judgments of said District Court be and it hereby are AFFIRMED.
This is an appeal by two co-defendants, Edwin Charles Fortes, Jr. and Sandra Jemison, from judgments of conviction of conspiracy to commit bank robbery in violation of 18 U.S.C. § 371, entered after a jury trial before Chief Judge Clarie of the United States District Court for the District of Connecticut. Appellant Fortes also appeals from a conviction of possession of unregistered firearms in violation of 26 U.S.C. §§ 5861 and 5871.
Appellants' major argument on appeal is that the district court abused its discretion in admitting evidence that while free on bond Fortes attempted to kill Anton Ward, an alleged co-defendant and the major government witness at appellants' trial. There was sufficient evidence from which the jury could infer that the assault on Ward was motivated by Fortes's suspicion that Ward was a government informant, and if this inference were drawn, the evidence had great probative value as to Fortes's consciousness of guilt. It is also clear from the record that Chief Judge Clarie considered the prejudicial effect of the evidence, and that he performed the blancing test required by Rule 403, even though he did not make a specific finding that the requirements of that Rule were met. Thus, admission of the evidence was not error. See, e.g., United States v. Palmieri, 456 F.2d 9, 14 (2d Cir.), cert. denied, 406 U.S. 945 (1972).
Appellant Jemison argues that the evidence of the shooting of Ward was so inflamatory that the jury would inevitably consider it against her, even though there was no evidence of her involvement in the assault. However, the instructions given to the jury, which make clear that the evidence was not to be considered against Jemison, were sufficient to protect her from any prejudice.
Appellants also contend that evidence from two searches was improperly admitted because the warrants authorizing the searches were not supported by probable cause. Law enforcement authorities first searched a footlocker found in a car, reported stolen, which appellants were thought to have been driving.Later the apartment in Middletown, Connecticut where appellants had been residing was searched. These searches produced firearms and masks similar to those worn in bank robberies in which appellants were accused of participating. We conclude that appellants had no reasonable expectation of privacy in a footlocker in a stolen car. Cf., e.g., Rakas v. State of Illinois, 47 U.S.L.W. 4025 (Dec. 5, 1978); United States v. Busic, No. 77-1332 (2d Cir. Oct. 30, 1978), slip op. at 4999, 5013-16. We also conclude that there was probable cause to search the apartment in Middletown. The contents of the footlocker strongly suggested that appellants had participated in two prior bank robberies in the Middletown area, and police had cause to believe they were planning another robbery. The authorities also had a reasonable basis to believe that the apartment had been used as their base of operations, and thus there was probable cause to believe that the apartment contained evidence of the robberies. Thus the evidence from both searches was properly admitted at appellants' trial.
Appellants also contend that it was error for the district court to refuse to order the government to disclose to them the identity of a confidential informant who told police that Fortes, his girlfriend Sandra and a third person, Dawkins, had robbed a bank using guns furnished by Ward. Appellants claim this informant might have been able to refute Ward's testimony that the guns found in the footlocker belonged to Fortes. The government submitted information concerning the informant to the district court in camera, and the trial judge concluded that disclosure of the identity of the informant would place him in danger and that the informant was not likely to provide information helpful to the defense. We have examined the in camera submission, and we agree with the judge's conclusions. Thus the nondisclosure of this information did not violate appellants' due process rights.
Jemison makes the additional argument that it was improper for the court to refuse to disclose the name of the informant to her, since there was no finding that she might harm the informant. Given the relationship between the co-defendants, we think the district court's decision not to release the information to either defendant was not error.
Appellant Fortes makes three additional arguments. He contends that it was error for the court to deny his motions for a mistrial or for a voir dire of a juror who allegedly viewed him in handcuffs, that it was error for the government to withhold the handwritten notes of its hair sample expert from the defense until the day of the witness' testimony and that the accomplice testimony instruction was inadequate and confusing. We find these arguments to be without merit.The alleged viewing of Fortes by one juror was brief and not aggravated and in this situation the district court could conclude that the defendant was not prejudiced without conducting a voir dire. The lack of the expert's notes did not prejudice the defense, so we need not decide whether they should have been turned over earlier. Finally, we conclude that the accomplice testimony instruction was adequate.
We have considered all the arguments raised by appellants and find them without merit. The judgments of conviction of both Fortes and Jemison are affirmed.
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