Appeal from the United States District Court for the Western District of Wisconsin, No. 86 CR 64 -- Barbara B. Crabb, Judge.
Bauer, Chief Judge, and Flaum and Easterbrook, Circuit Judges.
Defendant-appellant, Kent Thomas L'Allier, was convicted of two counts of armed robbery under 18 U.S.C. §§ 2113(a) and (d). L'Allier challenges his conviction on the grounds that: (1) the government's delay in indicting him violated the due process clause of the fifth amendment; (2) the district court's denial of his motion to suppress identification evidence was an abuse of discretion; (3) counts I and II of his indictment were improperly joined and the district court abused its discretion when it denied his motion to sever; and (4) the district court erred by permitting the introduction of certain evidence despite the government's failure to establish a complete chain of custody. We affirm.
On October 29, 1984, a single armed robber took $7,940 from the Community State Bank of Eau Claire, Wisconsin. Witnesses described the robber as a man between five feet ten inches and six feet tall, 160 to 170 pounds, with a slim build. The robber wore a white hooded sweatshirt with the hood pulled up, dark gloves, dark glasses, a false mustache and a false beard. He fled the bank on foot into a nearby neighborhood. A few days before the robbery, a resident of Chippewa Street (a street near the bank) saw a man wearing a white sweatshirt with "USA" printed on the front "scouting" the neighborhood.
On April 22, 1985, the Community State Bank of Eau Claire was robbed again by a single armed robber. This time the robber took $3,085 from the bank, including $500 of prerecorded bait bills in $20 denominations.*fn1 Witnesses described the robber as a man with a slim build, between five feet eight inches and six feet tall, and weighing between 140 and 170 pounds. The robber wore a blue hooded sweatshirt, a green stocking cap, dark glasses, brown work gloves, a false mustache and a false beard. The robber was armed with a small chrome or silver plated revolver. He fled the bank on foot toward the homes on Chippewa Street.
From October 11, 1984 through October 17, 1984, L'Allier rented a room at the Westgate Motel in Eau Claire, Wisconsin under the name "Dennis Sigsworth." The defendant again rented a room at this hotel under this same alias from April 10, 1985 to April 16, 1985 and on several other occasions.
The defendant was arrested on an unrelated charge on June 24, 1985. When arrested, L'Allier identified himself as Dennis Sigsworth. The arresting officers found a small silver revolver wrapped in a green ski mask in L'Allier's car. L'Allier's car was then driven to the St. Croix County Sheriff's Department where it was sealed with evidence tape. Earl Clark and Mark Willink of the St. Croix Sheriff's Department conducted an inventory search of the car on June 25, 1985. At trial, Clark testified that during the inventory search of L'Allier's car they found three white hooded sweatshirts and at least one blue pullover. Willink testified that they found three white hooded sweatshirts, one of which had "USA" in red letters on the front, and two blue pullovers. They also found two pairs of brown work gloves. In addition, Clark and Willink found ten twenty dollar bills, seven of which were bait bills from the April 22, 1985 bank robbery. On July 10, 1985, the St. Croix Sheriff's Department released L'Allier's car and personal articles to his brother, Randy L'Allier. An FBI agent retrieved three sweatshirts, one plain white, one blue and one white with the letters "USA" printed on it, from Randy's home on July 16th.
On October 8, 1986, a federal grand jury indicted L'Allier on two counts of armed bank robbery in violation of 18 U.S.C. §§ 2113(a) and (d). The first count charged L'Allier with the October 29, 1984 armed bank robbery of the Community State Bank of Eau Claire, Wisconsin. Count II charged the defendant with the April 22, 1985 armed robbery of the same bank. The defendant moved to dismiss his indictment on the basis of impermissible preindictment delay. The district court denied the motion. Before trial, L'Allier also moved to have counts I and II of his indictment severed. L'Allier argued that severance was required because the crimes charged in the two counts were not sufficiently related. L'Allier also asserted that severance was necessary on the ground that the government's case on count II was much stronger than its case on count I. This disparity in the strength of the government's evidence, L'Allier argued, would prejudice his defense and cause a jury to convict him on both counts, even though standing alone there was not enough evidence to prove guilt beyond a reasonable doubt on count I. The district court also denied this motion.
At trial, L'Allier moved to suppress any in-court identification of himself by Rick Iverson, a government witness, on the ground that Iverson's identification would be based on an impermissibly suggestive pretrial identification procedure. Iverson testified that he saw the defendant outside the Eau Claire bank just prior to the April 22, 1985 robbery, but admitted that he had been shown a pretrial photo display. The district court held that the pretrial identification procedure was not impermissibly suggestive and therefore denied L'Allier's suppression motion. Finally, L'Allier sought to prevent the introduction into evidence of several sweatshirts because the government could not establish a complete chain of custody. The district court admitted the sweatshirts over L'Allier's objection.
A jury found L'Allier guilty of both armed bank robberies. The district court sentenced L'Allier to two consecutive ten year prison sentences, and to an additional five year prison term on each count pursuant to the enhancement provisions of 18 U.S.C. § 924(c). The five year enhancement sentences are concurrent with one another and consecutive to the initial ten year sentences.
L'Allier first argues that the district court erred in denying his motion to dismiss his indictment. L'Allier claims that excessive pre-indictment delay actually and substantially prejudiced his defense in violation of the due process clause of the fifth amendment. L'Allier was arrested on charges unrelated to the bank robberies on June 24, 1985. The following day, the St. Croix Sheriff's Department performed an inventory search of his car which revealed evidence linking L'Allier to both armed robberies. L'Allier was not indicted for the armed bank robberies, however, until October 8, 1986 -- two years after the first robbery and sixteen months after the search of his car ...