United States v. Allums

379 F. App'x 711
CourtCourt of Appeals for the Tenth Circuit
DecidedMay 19, 2010
Docket09-4136
StatusUnpublished
Cited by1 cases

This text of 379 F. App'x 711 (United States v. Allums) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Allums, 379 F. App'x 711 (10th Cir. 2010).

Opinion

*712 ORDER AND JUDGMENT **

ROBERT H. HENRY, Circuit Judge.

James Edward Allums was convicted after a jury trial of (1) armed bank robbery of the Salt Lake Schools Credit Union on November 15, 2007; and (2) attempted robbery of the Home Savings Bank on November 30, 2007, both in violation of 18 U.S.C. § 2113(a) and (d). The jury acquitted Mr. Allums of a third robbery charge, and the district court sentenced him to 120 months’ imprisonment followed by 60 months’ supervised release.

In this appeal, Mr. Allums contends that the district court erred in admitting the testimony of a state probation officer who identified Mr. Allums’s voice on a videotape of the attempted robbery of the Home Savings Bank. In particular, Mr. Allums asserts that the officer’s statement on direct examination that he “work[ed] for the adult probation and parole” was more prejudicial than probative under Rule 403 of the Federal Rules of Evidence because it informed the jury of his criminal history. See Rec. vol. Ill, at 214. Mr. Allums maintains that the error was not harmless and that he is entitled to a new trial.

The admissibility of the probation officer’s testimony about his occupation presents a close question, but we need not reach it here. Instead, we conclude that, even assuming that the district court abused its discretion in admitting the evidence, any such error was harmless. We therefore affirm Mr. Allums’s convictions.

I. BACKGROUND

A federal grand jury indicted Mr. Al-lums for: (1) the robbery of a Salt Lake City K-Mart on October 23, 2007; (2) the robbery of the Salt Lake City Schools Credit Union on November 15, 2007; and (3) the attempted robbery of the Home Savings Bank on November 30, 2007. All counts charged violations of 18 U.S.C. § 2113(a) and (d).

A. Officer Howard’s Testimony

Prior to trial, the prosecution filed a motion stating that it intended to call Mr. Vaughn Howard, Mr. Allums’s former probation officer. The prosecution reported that Officer Howard had viewed a surveillance tape that recorded the attempted robbery and that he would testify that Mr. Allums was the perpetrator. In order to limit the prejudice that might result from identifying Officer Howard as Mr. Allums’s probation officer, the prosecution proposed that Officer Howard describe himself as “a friend, associate, or acquaintance of the defendant’s.” Rec. vol. I, doc. 123, at 4-5. Mr. Allums objected to Officer Howard’s proposed testimony, asserting that the testimony would be unduly prejudicial. In Mr. Allums’s view, even omitting the fact that Officer Howard was his probation officer and describing him as “a friend, associate, or acquaintance” would unfairly limit cross examination.

The district court issued a pretrial ruling allowing Officer Howard to testify. The court explained that “evidence that the voice on the recording [of the attempted robbery of the Home Savings Bank] is highly probative of Defendant’s guilt” and that “the risk of undue prejudice to Defendant is low, so long as the government does not inquire, on direct, regarding the specific nature of the relationship between the parole officer and Defendant.” Id. vol. II, at 10-11 (Memorandum & Order, filed March 12, 2009, at 4-5).

At a bench conference during the trial, the district court clarified its ruling. It *713 explained to the attorneys that “the Court’s previous order did not intend to preclude information about what it is [Officer Howard and a Salt Lake City Police Detective] did for a living.” Supp. Rec. vol. I, at 133.

At trial, Officer Howard gave the following testimony:

Q.: Sir, where are you employed?
A.: I work for the adult probation and parole.
Q.: How long had you known Mr. Al-lums prior to say October, November of 2007?
A.: I’ve known him for about six months.
Q.: In the course of knowing him, how often had you seen him during that six-month period of time?
A.: I have some notes here just to kind of refresh my memory, if you’ll let me look at them real quick. I came into contact with him about 13 times about the last — between ten and 15 minutes per visit.
Q.: And did you also go to his house and see him there?
A.: Yeah, I did that. You know, went to his house about eight times.
Q.: Did you ever talk to Mr. Allums on the telephone?
A.: I did. I talked to him about 15 times.

Rec. vol. Ill, at 213-14. Officer Howard then indicated that he had identified Mr. Allums’s voice, both in a voice line-up and in the surveillance video of the Home Savings Bank robbery attempt.

Mr. Allums’s attorney objected to Mr. Howard’s testimony. The district court overruled the objection, citing the prior ruling that “this witness, the officer, would be able to be identified by [his] profession,” and observing that there was a need for “there to be some context” for the jury as to a witness’s profession. Id. at 217.

B. Other Evidence Regarding the Attempted Robbery

Don and Jeff Ballard, who both worked at the Home Savings Bank, described the attempted robbery. They stated that, on November 30, 2007, at about 4:30 p.m., a man wearing a ski mask and coat with the hood up entered the bank and approached a teller with a knife. Don Ballard threw a chair down from the balcony and hit the man on his left shoulder, knocking him to the floor. The man got up from the floor, tore off his mask, swore at Don Ballard, and ran out the front door. Don Ballard saw the man’s face for one or two seconds and observed that he was African-American.

Jeff Ballard testified that he saw the man come around the back of the building into the alley. He reported that the man was African-American and was wearing a dark blue coat and no longer had on a hood or mask.

Neither of the Ballards identified Mr. Allums in a pretrial photographic lineup. However, immediately after his direct testimony, Don Ballard told the prosecutor that he recognized Mr. Allums as the person who had attempted to rob the Home Savings Bank. The district court permitted the prosecution to reopen its direct examination, and Don Ballard then testified that “I looked at [Mr. Allums] and beyond a reasonable doubt he was the man that was in my lobby.” Rec. vol. Ill, at 210. 1

The prosecution also presented testimony from Salt Lake City Police Detective

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Bluebook (online)
379 F. App'x 711, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-allums-ca10-2010.