United States v. Richard Olvera

30 F.3d 1195, 94 Daily Journal DAR 10510, 94 Cal. Daily Op. Serv. 5772, 1994 U.S. App. LEXIS 19095, 1994 WL 387135
CourtCourt of Appeals for the Ninth Circuit
DecidedJuly 27, 1994
Docket93-50234
StatusPublished
Cited by19 cases

This text of 30 F.3d 1195 (United States v. Richard Olvera) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth 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. Richard Olvera, 30 F.3d 1195, 94 Daily Journal DAR 10510, 94 Cal. Daily Op. Serv. 5772, 1994 U.S. App. LEXIS 19095, 1994 WL 387135 (9th Cir. 1994).

Opinions

Opinion by Judge O’SCANNLAIN; Dissent by Judge FERNANDEZ.

O’SCANNLAIN, Circuit Judge:

May a defendant be compelled at trial to recite statements made during a crime?

I

On July 9, 1991, a man wearing a cap and dark sunglasses entered the Security Pacific Bank in San Diego, California and cut in line to approach bank teller Rosa Ybarra. The man told Ybarra, “[w]hy don’t you give me your money?” After Ybarra said “[h]uh?,” the man said, “[g]ive me all of your money.” He repeated his command in Spanish, instructing Ybarra, “[d]ame tu dinero.” As Ybarra began giving him the money in her cash drawer, he told her to “[h]urry up.” The man then took the money and fled the bank.

Ybarra and another teller later told the Federal Bureau of Investigation (“FBI”) that [1196]*1196the bank robber was a 5’5” tall Hispanic male who had a mustache and some missing teeth. After viewing photo line-ups, Ybarra identified Richard Olvera as the robber. The other teller also picked Olvera and two other individuals out of the line-up. The FBI subsequently arranged for Olvera to appear in a live line-up, where Ybarra and the second teller identified Olvera as the robber.

The government charged Olvera with one count of unarmed bank robbery in violation of 18 U.S.C. § 2113(a). At trial, Ybarra told the jury what the robber had said to her. She testified that the bank robber’s speech was slurred and that he had spoken with a lisp, which she said could have been caused by his “Fu Manchu” moustache or missing tooth.

During its examination of Ybarra, the prosecution called for Olvera to stand in front of the jury to demonstrate his missing tooth and to speak the words uttered by the robber. Over an objection, Olvera was required to say, “[w]hy don’t you give me all of your money? Give me all of your money. Dame tu dinero.” The prosecution then continued with its examination of Ybarra, never asking her if Olvera’s voice was similar to that of the robber.

The jury ultimately rendered a verdict of guilty. The district court entered judgment, and this appeal ensued.

II

Olvera asserts that the trial court violated his Fifth Amendment right to due process by requiring him to speak the words of the robber in front of the jury. Speaking these words compromised the presumption of his innocence, Olvera argues.

“The presumption of innocence, although not articulated in the Constitution, is a basic component of a fair trial under our system of criminal justice” Estelle v. Williams, 425 U.S. 501, 503, 96 S.Ct. 1691, 1692, 48 L.Ed.2d 126 (1976). It thus is a requirement of due process. Bentley v. Crist, 469 F.2d 854, 855 n. 2 (9th Cir.1972). “To implement the presumption, courts must be alert to factors that may undermine the fairness of the fact-finding process.” Williams, 425 U.S. at 503, 96 S.Ct. at 1693.

Some courtroom practices are so inimical to the presumption of innocence that they violate defendants’ due process rights. Compelling a defendant to appear at trial in prison garb is impermissible because the constant reminder of the defendant’s incarcerated status may affect jurors’ perception of him or her as a wrongdoer. Id. at 504-05, 96 S.Ct. at 1693; Felts v. Estelle, 875 F.2d 785, 786 (9th Cir.1989); Bentley, 469 F.2d at 856. Unnecessary shackling or gagging of a defendant during trial is improper for the same reason. Illinois v. Allen, 397 U.S. 337, 345, 90 S.Ct. 1057, 1061, 25 L.Ed.2d 353 (1970); Jones v. Meyer, 899 F.2d 883, 884 (9th Cir.) (“Generally, a criminal defendant has a constitutional right to appear before a jury free of shackles.”), cert. denied, 498 U.S. 832, 111 S.Ct. 95, 112 L.Ed.2d 67 (1990). The deployment of excessive numbers of security personnel in a courtroom also can undermine the presumption of innocence. Holbrook v. Flynn, 475 U.S. 560, 569, 106 S.Ct. 1340, 1346, 89 L.Ed.2d 525 (1986) (“To be sure, it is possible that the sight of a security force within the courtroom might under certain conditions ‘create the impression in the minds of the jury that the defendant is dangerous or untrustworthy.’ ”). See also Norris v. Risley, 918 F.2d 828 (9th Cir.1990) (presumption of innocence impaired where numerous women wearing “Women Against Rape” buttons attended trial of defendant charged with sexual assault).

We must determine whether, like these practices, requiring a defendant to speak the words uttered during a robbery is unduly suggestive of guilt. In so doing, we are mindful that

the actual impact of a particular practice on the judgment of jurors cannot always be fully determined. But ... the probability of deleterious effects on fundamental rights calls for close judicial scrutiny. Courts must do the best they can to evaluate the likely effects of a particular procedure, based on reason, principle, and common human experience.

Williams, 425 U.S. at 504, 96 S.Ct. at 1693 (citations omitted); Norris, 918 F.2d at 834.

[1197]*1197Compelling a defendant to utter a criminal’s words clearly has the potential to violate due process.1 It would be inconsistent with the presumption of innocence, for instance, to require a defendant to “put on a ski mask, wave a toy gun, and shout ‘[g]ive me your money or I’m going to blow you up.’ ” United States v. Brown, 644 F.2d 101, 107 (2d Cir.), cert. denied, 454 U.S. 881, 102 S.Ct. 369, 70 L.Ed.2d 195 (1981) (Oakes, J., dissenting); United States v. Domina, 784 F.2d 1361, 1374 (9th Cir.1986), cert. denied, 479 U.S. 1038, 107 S.Ct. 893, 93 L.Ed.2d 845 (1987) (Schroeder, J., dissenting). Common sense explains this conclusion. Much like the wearing of prison clothes, the uttering of a criminal’s statements isolates the defendant from all others in a courtroom and inevitably associates him or her with the charged conduct, thus tending to “brand [him or her in the jurors’] eyes with an unmistakable mark of guilt.” Holbrook, 475 U.S. at 571, 106 S.Ct. at 1347 (internal quotation omitted). The potential for influencing jurors’ judgment is particularly acute when a defendant invokes his or her Fifth Amendment right not to testify. In such a situation, the only statements by the defendant that the jury ever will hear are those in which he or she mimics the criminal. These statements thus are likely to remain prominent in jurors’ memories and to dominate their perception of the defendant. Cf. Williams, 425 U.S. at 504-05, 96 S.Ct.

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30 F.3d 1195, 94 Daily Journal DAR 10510, 94 Cal. Daily Op. Serv. 5772, 1994 U.S. App. LEXIS 19095, 1994 WL 387135, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-richard-olvera-ca9-1994.