                                                                           FILED
                           NOT FOR PUBLICATION                              APR 26 2010

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 08-50492

             Plaintiff - Appellee,               D.C. No. 3:06-cr-00206-JAH-2

  v.
                                                 MEMORANDUM *
DAVID SCAGGS, AKA Sly,

             Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 08-50493

             Plaintiff - Appellee,               D.C. No. 3:06-cr-00206-JAH-4

  v.

LEONARD SCAGGS, AKA Ricky,

             Defendant - Appellant.



                    Appeal from the United States District Court
                       for the Southern District of California
                     John A. Houston, District Judge, Presiding

                       Argued and Submitted March 2, 2010
                              Pasadena, California

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: RYMER and WARDLAW, Circuit Judges, and KENNELLY, ** District
Judge.

      David Scaggs (“David”) and Leonard Scaggs (“Leonard”) appeal their

convictions by a jury for first degree murder in violation of 18 U.S.C. § 1111. The

charges arise from the January 1993 robbery and murder of Mark Smith at the

32nd Street Naval Station in San Diego. Both defendants were sentenced to life

imprisonment.

      Defendants raise a number of issues on appeal. Both defendants argue that

the trial court erred in denying their motions to dismiss for pre-indictment delay.

David challenges the denial of his motion to suppress his confession and the

admission of evidence of another crime. Both defendants argue that the trial court

erred in denying their motions for severance, and David challenges the admission

of evidence that he contends contravened Bruton v. United States, 391 U.S. 123

(1968). Finally, Leonard challenges a supplemental instruction given by the trial

court in response to a jury question during deliberations.

      We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

1.    Pre-indictment delay

      A motion to dismiss based on pre-indictment delay requires a defendant to


       **
            The Honorable Matthew F. Kennelly, United States District Judge for
the Northern District of Illinois, sitting by designation.

                                          2
show, first, that he “suffered actual, non-speculative prejudice from the delay.”

United States v. Doe, 149 F.3d 945, 948 (9th Cir. 1998) (internal quotation marks

and citation omitted). Defendants contend that the thirteen-year delay between the

crime and their indictment denied them the opportunity to identify witnesses and

examine forensic evidence at the crime scene, and they argue that by the time they

were charged, witnesses could no longer recall details, and some law enforcement

personnel involved in the investigation had passed away or retired.

      The district court did not abuse its discretion in finding that the defendants

failed to show actual prejudice. First, the defendants offered nothing to suggest

that helpful forensic evidence likely would have been available had they been

indicted in 1993. Second, “[g]eneralized assertions of the loss of memory,

witnesses, or evidence are insufficient to establish actual prejudice,” United States

v. Manning, 56 F.3d 1188, 1194 (9th Cir. 1995), and that is all the defendants

offered. See also United States v. Sherlock, 962 F.2d 1349, 1354 (9th Cir. 1989)

(mere potential for memory lapses insufficient). Third, they failed to show that the

fact that some law enforcement officers were unavailable prejudiced them.

Because defendants did not show actual prejudice, there is no need to assess the

reasons for the prosecution’s delay. United States v. Barken, 412 F.3d 1131, 1134

(9th Cir. 2005).


                                           3
2.    Miranda

      David contends that the district court should have suppressed his statement

because his Miranda waiver was unknowing and involuntary. His first argument is

that his waiver was unknowing because he was not told that he had a right to speak

with a lawyer before questioning or that he could terminate questioning at any

time. The relevant inquiry is “whether the warnings reasonably convey to a

suspect his rights as required by Miranda.” Duckworth v. Eagan, 492 U.S. 195,

203 (1989) (internal quotation marks and citation omitted); see also, California v.

Prysock, 453 U.S. 355, 359 (1981) (“[N]o talismanic incantation [is] required to

satisfy [Miranda’s] strictures.”).

      We reject David’s argument that the warnings were inadequate. The

investigator who questioned David did not tell him in so many words that he had a

right to speak to an attorney before questioning. But advice of that right can be

inferred from the investigator’s statement that David had the right to have counsel

appointed before questioning. See, e.g., United States v. Connell, 869 F.2d 1349,

1352 (9th Cir. 1989); cf. Florida v. Powell, ___ U.S. ___, 2010 WL 605603, at * 8

(Feb. 23, 2010) (warnings adequate where “in combination” they convey right to

have an attorney present at all times). In addition, because the investigator advised

David that he had the right to remain silent, his failure to state that David could


                                           4
terminate questioning at any time did not render the Miranda waiver unknowing.

“[A] defendant need not be informed of a right to stop questioning after it has

begun.” United States v. Lares-Valdez, 939 F.2d 688, 689 (9th Cir. 1991).

      David also argues that his Miranda waiver was involuntary because the

investigator asked if he was a religious man, and when he replied in the

affirmative, the investigator said, “Well, if you’re a religious guy, now is the time

to tell the truth.” We disagree. An appeal to a suspect’s religious beliefs does not

render a confession involuntary unless his will was overborne. United States v.

Miller, 984 F.2d 1028, 1032 (9th Cir. 1993). This brief reference did not overbear

David’s will. Even after this exchange, David continued to deny involvement in

the homicide. Rather, it was not until the investigator played Leonard’s taped

interview that David began to confess.

3.    Other act evidence

      David contends that the trial court erred by failing to exclude evidence

regarding an armed robbery in Coronado two days after the murder of Mark Smith.

The evidence included testimony about the robbery itself and testimony that David

was arrested after being found in an automobile with a gun under his seat that was

determined to be the same gun used to shoot Mark Smith.

      David contends that the district court should have excluded evidence of the


                                           5
robbery – as contrasted with evidence that he was arrested with the gun – under

Federal Rules of Evidence 403 and 404(b). Even if the evidence were improperly

admitted, it would not entitle David to a new trial, because “it is more probable

than not that the erroneous admission of the evidence did not affect the jury’s

verdict.” United States v. Gallenardo, 579 F.3d 1076, 1081 (9th Cir. 2009)

(internal quotation marks and citation omitted). The evidence against David was

quite strong even without regard to the other-crime evidence. The evidence

included David’s voluntary confession, in which he admitted that the gun was his

and described how he used it to rob and kill Mark Smith, and testimony by an

accomplice about the planning and commission of the robbery and murder and that

the defendants had made two other robbery attempts on the night of Smith’s

murder. For these reasons, admission of the Coronado robbery evidence, even if

erroneous, does not warrant reversal.

4.    Severance / Bruton

      The district court did not abuse its discretion in denying both defendants’

motions for severance. Leonard was not unfairly prejudiced by being tried jointly

with David, despite his arguments that the evidence against David was stronger

and that the jury might not be able to see past their sibling relationship. See United

States v. Hernandez, 952 F.2d 1110, 1116 (9th Cir. 1991). There is no basis to


                                           6
believe that the jury was unable or unwilling to follow the trial judge’s instruction

to give each defendant separate consideration.

      David and Leonard each gave a confession that implicated the other. The

district court did not err, however, in finding that the government’s redactions from

each defendant’s statement of references to the other cured any Bruton problem.

See Richardson v. Marsh, 481 U.S. 200, 208-09 (1987); United States v. Hoac, 990

F.2d 1099, 1105-07 (9th Cir. 1993).

      On cross-examination and redirect of the investigator who took David’s

statement, Leonard’s counsel and the prosecutor each elicited a brief reference to

Leonard’s statements regarding David’s involvement: a statement by Leonard that

David and another accomplice had gotten out of the car they were in just before the

robbery, and testimony that Leonard had been “forthright” because “he implicated

his brother.” David’s counsel did not object, but the potential problem was

brought to the trial judge’s attention by the prosecutor in the first instance and by

Leonard’s counsel in the second, and the judge did not take curative action. Any

error, however, was harmless in light of the other compelling evidence of David’s

guilt. See United States v. Gillam, 167 F.3d 1273, 1277 (9th Cir. 1999).1



      1
      We conclude that the cumulative effect of any error in admitting the
Coronado robbery evidence and the claimed Bruton error was likewise harmless.

                                           7
5.    Supplemental jury instruction

      Leonard also seeks a new trial based on his contention that a supplemental

instruction to the jury during its deliberations misstated the requirements for felony

murder.

      The trial court instructed the jury that a defendant is guilty of felony murder

if he, or another participant whom he aided and abetted, unlawfully killed the

victim, and this occurred in the knowing and willful perpetration of the crime of

robbery. The court also instructed the jury that a defendant could be found guilty

if he knowingly and intentionally aided another person to commit robbery and did

so before the robbery was completed. The closing argument of Leonard’s counsel

focused on his contention that Leonard was not part of the group that had planned

and carried out the robbery.

      During deliberations, the jury sent the trial court a question in which it made

reference to the aiding and abetting instruction’s requirement that the defendant act

before the crime was completed. The jury asked the court to “define when the

crime was completed. Is the escape considered part of the crime?” Leonard

objected to the giving of any supplemental instruction. After considering the

parties’ arguments, the trial court instructed the jury that

      [t]he crime of robbery continues beyond the immediate scene of the


                                            8
      robbery and necessarily encompasses the escape. The crime is
      completed when the robber’s concern of being apprehended is no
      longer imminent or have arrived [sic] at a point of temporary safety.
      You should consider these responses or definitions along with the
      entirety of [the aiding and abetting instruction] and all of the other
      instructions provided to you.

      The judge's supplemental instruction that the crime of robbery includes

escape was legally correct. See United States v. Dinkane, 17 F.3d 1192, 1199 (9th

Cir. 1994). Leonard argues on appeal, however, that the supplemental instruction

allowed the jury to convict him of felony murder even if it found that he joined the

robbery only during the escape, after the murder had been committed. He argues

by analogy to California's felony murder rule that an accomplice must aid and abet

the underlying felony at or before the time of the killing. See People v. Pulido, 15

Cal. 4th 715, 723, 63 Cal. Rptr. 2d 625 (1997). Assuming the federal rule is the

same, however, the flaw was in the felony murder instruction, which did not

require the defendant to have joined the crime before the victim was killed.

Leonard did not object to the felony murder instruction and has not appealed from

it, and thus no issue regarding that instruction is properly before us.

      For this reason, the district court did not abuse its discretion in denying

Leonard a new trial on account of the supplemental instruction.

      AFFIRMED.



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