United States v. Ernest James Perkins

Ernest Perkins appeals his conviction for bank robbery under 18 U.S.C. § 2113 (a). Perkins claims the district court made several erroneous evidentiary rulings and improperly instructed the jury on consciousness of guilt and change of appearance. We affirm.

I. Facts

On November 9, 1987, at approximately 12:40 p.m., a single black male approached Ms. Linda Purmont’s teller window in the Southern California Bank in Whittier. The man, who had a moustache, wore a rust-colored suit with wide lapels and bell bottom pants and carried a maroon soft-sided briefcase. He then placed a pouch on the counter and pushed a note toward her which stated, “This is a robbery. I have a gun and want all your large money.” As the teller started taking money out of her drawer, the man repeated that he had a gun and his demand for large bills. The *1400 teller gave the man a total of $653 and activated the surveillance cameras as the robber left the bank.

On December 1, 1987, Perkins was indicted on four counts of bank robbery. On February 10, 1988, however, due to “certain evidentiary problems,” the government moved to dismiss three of the four counts. Perkins opposed the motion on the ground that his…

dissenting:

Ernest Perkins has raised eight independent challenges to his bank robbery conviction. The court rejects all eight and affirms the conviction. I concur in the court’s analysis in all respects but one; I am not persuaded that the district court’s change-of-appearance instruction, which everyone but the government concedes was improper, 1 constituted harmless error beyond a reasonable doubt. I therefore must dissent.

I

The court has properly identified the problem: “A change of appearance instruc *1407 tion contemplates some independent evidence indicating that the defendant himself actually changed his appearance. Ante at 1403 (emphasis in original). Here, there is no such independent evidence. The bank surveillance photographs demonstrate that the robber, during the commission of the crime, had a long, thick moustache. A distinct photograph of the defendant demonstrates that he, at the time of his booking, had only a slight amount of growth over his lip. By themselves, these two sets of images offer no meaningful inference; there is nothing to tie them together. The missing link that would have justified a change-of-appearance instruction would be a photograph of…

937 F.2d 1397 34 Fed. R. Evid. Serv. 734 UNITED STATES of America, Plaintiff-Appellee, v. Ernest James PERKINS, Defendant-Appellant. No. 88-5237. United States Court of Appeals, Ninth Circuit. Submitted Dec. 7, 1990. * Decided July 1, 1991. Philip Deitch, Los Angeles, Cal., for defendant-appellant. Adam B. Schiff, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee. Appeal from the United States District Court for the Central District of California. Before WALLACE, Chief Judge, and O'SCANNLAIN and RYMER, Circuit Judges. RYMER, Circuit Judge: 1 Ernest Perkins appeals his conviction for bank robbery under 18 U.S.C. Sec. 2113 (a). Perkins claims the district court made several erroneous evidentiary rulings and improperly instructed the jury on consciousness of guilt and change of appearance. We affirm. I. Facts 2 On November 9, 1987, at approximately 12:40 p.m., a single black male approached Ms. Linda Purmont's teller window in the Southern California Bank in Whittier. The man, who had a moustache, wore a rust-colored suit with wide lapels and bell bottom pants and carried a maroon soft-sided briefcase. He then placed a pouch on the counter and pushed a note toward her which…