United States v. Ernest James Perkins
937 F.2d 1397, 91 Daily Journal DAR 7884, 34 Fed. R. Serv. 734 (1991)
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Rule of Law:
A jury instruction allowing an inference of consciousness of guilt from a defendant's change of appearance is improper unless there is independent evidence showing that the defendant actually changed his appearance after the commission of the crime.
Facts:
- On November 9, 1987, a single black male with a moustache, wearing a rust-colored suit and carrying a maroon briefcase, robbed the Southern California Bank in Whittier.
- The robber presented a note to teller Linda Purmont stating, 'This is a robbery. I have a gun and want all your large money,' and was given $653.
- As the robber left, the teller activated surveillance cameras.
- An eyewitness, Chris Alamond, saw a man running from the bank and getting into a blue Datsun.
- Police found a parking citation inside the bank that had been issued to a blue Datsun registered to Ernest Perkins.
- A search of Perkins's apartment uncovered a delinquent notice for the parking ticket, a rust-colored 1970s-style suit, and a maroon briefcase.
- When questioned by an FBI agent prior to his arrest, Perkins falsely claimed he did not own a car and that a friend had dropped him off.
- Officers found the blue Datsun registered to Perkins parked nearby and the car keys in his pocket.
Procedural Posture:
- Ernest Perkins was indicted on four counts of bank robbery in the U.S. District Court.
- The government filed a motion to dismiss three of the four counts, which the district court granted over Perkins's opposition.
- Perkins was tried by a jury in the U.S. District Court on the single remaining count of bank robbery.
- The jury returned a verdict of guilty.
- The district court denied Perkins’s motion for a new trial.
- Perkins, as the appellant, appealed his conviction to the U.S. Court of Appeals for the Ninth Circuit, with the United States as the appellee.
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Issue:
Does a district court commit reversible error by giving a 'change of appearance' jury instruction when there is no independent evidence that the defendant altered his appearance after the crime?
Opinions:
Majority - Rymer, Circuit Judge
No, while giving the instruction was an error, it was not reversible because the error was harmless beyond a reasonable doubt. A 'change of appearance' instruction requires independent evidence that the defendant himself actually changed his appearance; a mere discrepancy between the perpetrator's appearance in surveillance photos and the defendant's appearance at the time of arrest is insufficient. Here, there was no evidence Perkins had a thick moustache and then shaved it. However, the error was harmless for two main reasons. First, for the jury to have used this instruction, they would have already needed to conclude that Perkins was the robber, making the inference of guilt from the change circular. Second, the other evidence against Perkins—including his false exculpatory statements about his car, the discovery of the suit and briefcase in his apartment, and the car's connection to the crime scene—was so overwhelming that the improper instruction could not have affected the verdict.
Dissenting - O'Scannlain, Circuit Judge
Yes, giving the 'change of appearance' instruction was reversible error because it cannot be considered harmless beyond a reasonable doubt. The majority correctly identifies that the instruction was improper due to the lack of a 'missing link'—evidence that Perkins had a moustache before the robbery that he later removed. However, the majority is wrong to conclude the error was harmless. The evidence against Perkins was not overwhelming, as it was plagued by inconsistencies in witness testimony and a plausible defense theory that his roommate, Harold McGee, could have framed him. An improper instruction from the judge carries significant weight, and a logical jury might assume the judge had a valid reason for giving it, thus prejudicing them against the defendant. Given that the evidence was not overwhelming, the court cannot be certain beyond a reasonable doubt that this prejudicial instruction did not contribute to the guilty verdict.
Analysis:
This case clarifies the evidentiary foundation required for a 'change of appearance' jury instruction, setting a clear precedent that the prosecution must present independent evidence of an actual change by the defendant. It establishes that a mere difference in appearance between a perpetrator at the crime scene and the defendant at arrest is insufficient. Although the court affirmed the conviction on harmless error grounds, the legal principle itself serves as a crucial check on speculative inferences of guilt. This decision forces lower courts to scrutinize the basis for such instructions, protecting defendants from juries being invited to infer guilt without a concrete link between the defendant's actions and consciousness of guilt.
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