UNITED STATES of America, Plaintiff-Appellee, v. Leo RUBIER, Defendant-Appellant

651 F.2d 628

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 10, 1981
• Docket: 80-1110
• Status: Published

Opinions

PER CURIAM:

This appeal is from a February 15, 1980, judgment and commitment of defendant-appellant, imposing a 10-year sentence to be served consecutively to the Montana state sentence presently being served by him, with eligibility for parole under 18 U.S.C. § 4205(b)(2) at such time as the Parole Commission may determine. The jury found Leo Rubier guilty of (1) bank robbery and assault, putting in jeopardy the life of bank employees by the use of a gun, in violation of 18 U.S.C. § 2113(a) and (d); and (2) aiding and abetting such crimes, in violation of 18 U.S.C. § 2, on the basis that he had driven the “getaway” car (R.T. 27). We affirm.

The only evidence directly implicating Rubier was the testimony of Wayne Schrader (R.T. 21-34 & 41). On cross-examination of Schrader, defense counsel sought to show bias by revealing Schrader’s immunity-for-testimony agreement with the Government (R.T. 54-62) and that Schrader was a heroin addict (R.T. 40-43). Defense counsel’s questions, which were mostly lengthy statements, show that he was reading or paraphrasing the two written letters containing the agreement (R.T. 56-58, 60-62) and thus selectively putting parts of the agreement before the jury. The prosecutor’s reaction to the immunity-for-testimony evidence was to seek admission of the two letters containing all the terms of the agreement (R.T. 62, 65). One letter, dated May 5, 1978 (P-6), was from Schrader’s attorney to Prosecutor Sim and the other a return letter from the United States Attorney dated May 8, 1978 (P-5). Defense counsel raised a general objection to the admission of the letters, asserting that there was not “any basis for ... [admitting the letters] under the rules of evidence,” and arguing that Schrader had never seen or participated in writing either of the letters (R.T. 66).

The district court admitted the letters, holding that the Government was entitled to have all the terms of the agreement put on the record after the defense had brought up the subject of the immunity-for-testimony agreement with the witness (R.T. 66).¹

We have concluded that there was no reversible error in admitting the letters into evidence for these reasons:

A. Facts of independent legal significance constituting a contract which is at issue are not hearsay. See N. L. R. B. v. H. Koch & Sons, 578 F.2d 1287, 1290-91 (9th Cir. 1978).

B. Since no specific objection was made to the admission of the letters on the ground that they supported a contention that the Government was motivating the witness Schrader to testify truthfully, the objecting party is precluded from asserting any such objection on appeal. United States v. O'Brien, 601 F.2d 1067, 1071 (9th Cir. 1979); Allen v. Schneckloth, 431 F.2d 635, 637 (9th Cir. 1970).

C. The letters in question contain the full terms of the immunity-for-testimony agreement and, hence, clarified and rebutted the defense cross-examination seeking to show bias of the witness Schrader. As such, they were relevant as tending to make the existence of the fact of bias less probable than it would be without the contents of the letters. Although the letter of May 5 from Schrader’s attorney (P-6) states that Schrader will testify truthfully at Rubier’s trial in return for the Government’s agreement not to prosecute him for this robbery, the answering letter from the United States Attorney dated May 8, 1978 (P-5), makes no mention of any agreement to speak “truthfully,” but only mentions that if he does not speak truthfully he will be subject to prosecution.²

The foregoing facts made clear that this record does not contain any implication that “the prosecutor knows what the truth is and is assuring its revelation.” See United States v. Roberts, 618 F.2d 530, 536 (9th Cir. 1980). We conclude that the vouching principle of United States v. Roberts, 618 F.2d at 533, namely, that “[i]t is improper for the prosecution to vouch for the credibility of a government witness,” is not applicable to this record.³ Further, we note that United States v. Roberts pointed out the desirability of considering “an instruction to the jury [to] dispel any improper suggestions” in appropriate circumstances. Id. at 536. No request was made for such an instruction in this case apparently because, as noted above, the 1978 letters did not contain a vouching by the Government for the truthfulness of Schrader’s testimony at the 1980 trial.⁴

The judgment of the district court will be affirmed.

1 . In view of the dissenting opinion, we note that it was the defense which injected the immunity agreement into the case. The defense counsel in effect read to the jury the portions of the letters which favored the defense. Cf. R.T. 56-58, 60-62 with P-5, P-6. See also Fed.R. Evid. 106. In overruling defense counsel’s objection to the admission of P-5 and P-6 into evidence, the trial judge stated at R.T. 67:

“THE COURT: Well, to explain my reasons, I think where you have gone into the terms of the agreement with this witness, the Government is entitled to have spread on the record all of the terms of the agreement.”

Defense counsel did not limit his cross-examination to Schrader’s understanding of what the terms of the agreement were. Counsel repeatedly asked if Schrader had “entered into [a] bargain,” and asked, “the Government had promised to do several things for you. Correct?” R.T. 56. These questions refer to the actual agreement, which was the written letters. Schrader accepted this written agreement through his attorney and by his act of testifying.

2 . These final two paragraphs of this letter make clear that the Government had not even interviewed Schrader prior to the writing of the May 8 letter and could not vouch in that letter for his testimony because it did not know what he would say:

“Of course, the United States is interested only in the truth. No deception, whether it hurts the Government’s case or not, will be tolerated. If it is established that Schrader has not been candid with the Government concerning the Lake Stevens robbery, this agreement will be considered to have been breached and he will be subject to prosecution.

“By copy of this letter I am requesting that the FBI expeditiously arrange to have Schrader interviewed at Lompoc concerning this bank robbery. We can arrange a Grand Jury appearance as soon as I see the results of the interview. As the dates arise when any action that the Government has agreed to needs to be taken in order to have it considered with regard to Schrader’s custody status, please contact me. I have no other way of knowing when he would need the help that the Government has promised to give him.”

The jury could not reasonably have found from the contents of P-6 and P-5 that the Government was vouching for anything Schrader might say in a future interview.

3 . The holding in United States v. Roberts, 618 F.2d 530, 532 (9th Cir. 1980), is inapplicable to this case since the reversal of the convictions in that case was based on “improper closing argument.” Also, there is no contention here that vouching by the Government for the truthfulness of Schrader’s testimony was mentioned in the arguments of counsel.

4 . This is not a case such as Roberts, supra, where two participants in a crime testified in a wholly inconsistent way (618 F.2d at 533), since defendant did not take the stand here. At the trial, Schrader testified that defendant Rubier participated in the bank robbery by driving the getaway car. An F.B.I. agent testified (N.T. 152-68) that defendant told him, at an interview in January 1979, that he did not drive that car or participate in the robbery, but that in the two days before the robbery Schrader, McGee, and defendant drove to the bank which was later robbed and “Schrader went in the bank to cash a large denomination bill, ... the purpose being to case the bank for a robbery.... They then drove to a used car lot .... to try to find a getaway car for the bank robbery” (N.T. 155). Also, the agent testified: “When he [Rubier] told me these events [Schrader going into the bank and cashing a bill and essentially casing the bank, going with the others to the car lot, and McGee test driving the getaway car, N.T. 162-63], his indication was that at the time they occurred, he knew that is what was going on .... In telling me these events, he indicated to me he knew at the time they went to the bank that it was to case the bank .... ” N.T. 163.