United States v. Mark Edwin Cook

Mark Cook appeals a judgment following his conviction of violating 18 U.S.C. § 2113 (a) and (d) (bank robbery) and of related conspiracy and firearm counts.

On January 23, 1976, four men attempted to rob the Tukwila Branch of the Pacific National Bank. Three of the robbers entered the bank while the fourth remained across the street in an automobile. Tukwila police officers, responding to a silent alarm, arrived at the bank while the robbers were still inside. A gun battle erupted between the robbers inside the bank and the officers outside. The fourth robber fired several shots at the police. He then drove away in the automobile.

The three robbers remaining in the bank surrendered and were taken into custody. They were later identified as Edward Meade, John Sherman, and Bruce Seidell. Shortly after his surrender, Seidell died from wounds. Meade stood trial and was convicted. His conviction was affirmed by this court in an unpublished disposition on August 19, 1977. Sherman, who was wounded, and tried separately, is not involved in this appeal.

On March 10, 1976, Officer Johnson of the King County Police was escorting Sher *1178 man to Harborview Medical Center for Sherman’s…

(with whom BROWNING, TRASK, J. BLAINE ANDERSON and TANG, Circuit Judges, concur):

Upon a vote of a majority of the judges, pursuant to Fed.R.App.P. 35(a), the court en banc has taken the question whether a defendant, who elected not to testify during his trial, could preserve on appeal his challenge to the trial judge’s ruling on a motion for an order excluding evidence of his former robbery convictions.

The trial court ruled in advance of trial that if Cook chose to testify the government could impeach him with evidence of any of his prior convictions not time-barred by Fed.R.Evid. 609(b). 4 Cook elected to remain silent, but now asserts that the chilling effect of the court’s preliminary ruling changed the course of his trial and prejudiced his defense. He says that the court denied him an important opportunity to place his own testimony before the jury and, in so doing, misapplied Rule 609(a).

Two lines of authority have developed in this circuit on the preliminary question of appellate review for defendants who elected not to testify. Compare United States v. Murray, 492 F.2d 178 (9th Cir. 1973), cert. denied, 419 U.S. 854 , 95 S.Ct. 98 , 42 L.Ed.2d 87 (1974), with United…

(with whom EUGENE A. WRIGHT, SNEED, CHOY and HUG, Circuit Judges, concur), dissenting in part to and concurring in part with en banc opinion:

This court should begin to question whether its attempts to devise new and further refinements for the criminal procedure system serve in any real sense to secure a fair and just trial. I doubt the new procedures concerning rule 609(a)(1) suggested by part IV of the majority opinion will be efficacious; and I fear that the maneuvers required, at least implicitly, by this part of the decision will simply complicate trials without affording real advantages, except to defendants who are looking for ways to manufacture erroneous trial court rulings. I respectfully suggest that both the premises and the conclusions of the court’s arguments in part IV of the opinion are incorrect.

The majority’s analysis is built on the assumption that defendants will be put to an extremely difficult choice unless they are permitted to appeal a ruling that prior convictions are admissible without taking the stand to testify. In my view the evil the majority seeks to avoid is not as serious as the majority thinks it to be. Moreover, the procedures devised merely…

(dissenting in part to and concurring in part with en banc opinion):

While I concur in the judgment to affirm the appellant’s conviction and some of the opinion of the majority, I cannot join that portion of the majority’s opinion which overrules United States v. Murray, 492 F.2d 178 (9th Cir. 1973). I would continue to deny an appeal on a ruling to admit prior convictions for the purposes of impeachment when such convictions were in fact not admitted because the defendant failed to take the stand. I concur in Judge Kennedy’s opinion which sets forth cogent reasons for this position.

I write separately only to add these comments. The majority’s procedure for preserving any error for appeal strikes me as cumbersome and unlikely to separate the instances in which the ruling to admit significantly influenced the defendant’s decision not to testify from those in which it did not so influence the defendant’s decision. Moreover, viewed in retrospect an erroneous ruling to admit will seldom be considered harmless error when the defendant fails to testify.

I realize that these assertions at this stage cannot be overwhelmingly supported. However, neither can they be conclusively…

concurring with en banc opinion:

I am persuaded that a defendant should be entitled to appellate review of the denial of a Rule 609 motion without testifying. However, my Brother Kennedy raises questions which cause me to add my view of an obviously troublesome area.

It is clear to me that the district judge may, within his wide discretion, properly defer ruling on a pretrial Rule 609 motion when, in spite of an offer of proof as to what the defendant would testify, he concludes that ruling is inappropriate at that juncture. But that question is not before us; here the pretrial motion was denied. The issue is: once a district judge has ruled and the defendant has chosen not to testify, is the question reviewable on appeal? Because I conclude that the defendant has not waived his right to challenge the ruling, the issue is resolved to my satisfaction by requiring the complaining party to establish a basis for appellate review — i. e., did the ruling of the district judge actually affect the defendant’s decision whether to testify and the determination of guilt by the jury.

I join with the majority on my assumption that, in addition to demonstrating that the district judge abused…

608 F.2d 1175 54 A.L.R.Fed. 661, 4 Fed. R. Evid. Serv. 1382 UNITED STATES of America, Appellee, v. Mark Edwin COOK, Appellant. No. 76-3465. United States Court of Appeals, Ninth Circuit. June 29, 1979. Rehearing and Rehearing En Banc Denied Sept. 12, 1979. Certiorari Denied Jan. 14, 1980. See 100 S.Ct. 706 . Timothy K. Ford, Smith, Kaplan, Withey, Schapira & Ford, Seattle, Wash., Robert T. Czeisler, King, King & Davidson, Kirkland, Wash., for appellant. J. Ronald Sim, U. S. Atty., Jack A. Meyerson, Asst. U. S. Atty., Seattle, Wash., for appellee. Appeal from the United States District Court for the Western District of Washington. Before TRASK and GOODWIN, Circuit Judges, and KELLEHER * , District Judge. GOODWIN, Circuit Judge: 1 Mark Cook appeals a judgment following his conviction of violating 18 U.S.C. § 2113 (a) and (d) (bank robbery) and of related conspiracy and firearm counts. 2 On January 23, 1976, four men attempted to rob the Tukwila Branch of the Pacific National Bank. Three of the robbers entered the bank while the fourth remained across the street in an automobile. Tukwila police officers, responding to a silent alarm, arrived at the bank while the robbers…