United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 96-3617

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United States of America, *

Plaintiff-Appellee, *

 v. *

Thomas Hayes, *

Defendant- *

Appellant. *

*

*

*

*

___________ Appeals from the United

States

District Court for the

No. 96-3715 District of Nebraska. 

___________

United States of America, *

*

Plaintiff-Appellee, *

*

 v. *

*

Georgianna Top Bear, *

*

Defendant-Appellant. *

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Submitted: March 11, 1997

 Filed: July 15, 1997

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The HONORABLE PAUL A. MAGNUSON, Chief Judge, United States

1

District Court for the District of Minnesota, sitting by designation.

The Honorable William G. Cambridge, Chief Judge, United States District

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Court for the District of Nebraska.

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Before McMILLIAN and HANSEN, Circuit Judges, and MAGNUSON,1

District Judge.

___________

HANSEN, Circuit Judge.

Thomas Hayes and Georgianna Top Bear appeal their criminal

convictions of armed bank robbery and conspiracy to commit bank

robbery. Hayes and Top Bear both contend that the district

court erred by denying their motions to reveal the identity of 2

a government witness. Additionally, Top Bear argues that the

district court erred by denying her motion to suppress evidence

and that the evidence was insufficient to support her

convictions. We affirm. 

I. Background

An indictment charged Hayes and Top Bear with armed

robbery, in violation of 18 U.S.C. § 2113(a), (d) (1994), and

conspiracy to commit bank robbery, in violation of 18 U.S.C.

§ 371 (1994). Viewing the evidence at trial in the light most

favorable to the verdict, see United States v. Johnson, 114

F.3d 808, 812 (8th Cir. 1997), the jury could have found the

following facts. On October 20, 1995, the Farmers and

Merchants State Bank in Niobrara, Nebraska, was robbed by an

individual wearing a brown trench coat, a dark ski mask that

completely covered the face, faded blue jeans, and white tennis

shoes. Two tellers, a bank vice president, and two customers

were present during the robbery, and all described the robber
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as a woman. At one point, the robber held a black handgun to

the head of the bank vice president. The robber brought 
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two garbage bags into the bank and dropped one at the scene.

In total, $4,680 was taken. 

One customer, Jimmy Dean Robinette, heard the robber’s

voice, believed it was familiar, and described the robber as

having a Native American dialect. When the robber fled in a

maroon mini van, Robinette pursued the robber and followed the

mini van out of town. At the edge of town, the van turned

south and a Ford Tempo pulled in front of Robinette, also

apparently following the mini van. Robinette recognized the

driver of the Tempo as Thomas Hayes, a patron of the bar that

Robinette owned. At that moment, Robinette realized that the

voice he recognized during the bank robbery was that of Hayes’

wife, Georgianna Top Bear, who also was a patron of Robinette’s

bar. Robinette was unable to keep up with the mini van and

returned to town to report the names of the persons he believed

were involved in the robbery. 

Chief Deputy Don Henery heard a radio broadcast advising

that the bank had been robbed and that the robber was driving

a maroon mini van south of town. He also heard the report that

Thomas Hayes and Georgianna Top Bear were suspects. Henery

knew Hayes and Top Bear were married, and he knew where they

lived on rural tribal trust land. Henery drove to their

residence and observed Hayes drive up in a Ford Tempo. When

Hayes saw the deputy, he immediately drove away. Henery

followed Hayes, who led Henery on a high-speed chase. After

driving the Tempo off a four- to six-foot embankment, Hayes

finally stopped his car. Hayes had his 2 1⁄2-year-old daughter

in the car with him. Hayes told Henery that he fled because

he had a can of beer in the car, in violation of the terms of

his probation for a prior felony conviction. Hayes consented

to a search of his car. The search produced two stocking

masks, gloves, and an empty BB gun box bearing a picture of a

replica .45 caliber pistol. Officers found a Wal-Mart receipt
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for a makeup kit, another Wal-Mart receipt for an air pistol,

and yet another Wal-Mart receipt for a three-hole mask and

gloves -- all purchased on the morning of the robbery. Also,

officers found a pawn ticket, documenting the pawn of Hayes’

trailer home and several movies for $72 at a pawn 
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shop located a few minutes away from the only Wal-Mart store

in Yankton, South Dakota. According to the pawn shop owner,

Hayes had pawned these items early on the morning of the

robbery. 

The same day, law enforcement officers secured a search

warrant for the home of Hayes and Top Bear. During the search,

officers seized a box of garbage bags and a loose bag found on

the floor. At approximately 11:00 p.m., Top Bear arrived at

the residence with a friend, Paula Larson. While an agent was

explaining the procedure, that is, that he would be asking her

to explain her whereabouts during the day, Top Bear offered

that she had been in Yankton, South Dakota, during the day.

She was eventually taken to the county jail, where she provided

officers with two handwritten confessions, both of which were

suppressed by the district court, because she had requested

counsel and a government agent had initiated the subsequent

contact which led to the confessions. 

Paula Larson testified that Top Bear arrived at her home

on foot at approximately 9:30 p.m. Top Bear told her that she

had been driving her mother’s car, experienced car trouble near

Lynch, Nebraska, and had walked from there to Larson’s home

(approximately 30 miles). Top Bear’s clothing was wet and

dirty. Larson gave her some dry clothing and offered to drive

Top Bear home. Larson gathered up Top Bear’s dirty clothing

and put them in grocery bags. When they approached Top Bear’s

home, they saw lights and police cars at the premises. Top

Bear told Larson, “Just keep going.” (Trial Tr. at 401.)

Larson drove past the residence, but they decided to return.

Top Bear said, “I might as well go back and face it.” (Id.)

Top Bear left the clothing in Larson’s car. Larson asked Top

Bear if she wanted the clothing, and Top Bear said she did not.

Larson permitted the officers to search her vehicle. Law

enforcement officers seized the clothing from Larson’s car, and
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the district court denied Top Bear’s motion to suppress this

evidence.
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At trial, Top Bear’s mother, Mrs. Red Blanket, testified

that Top Bear had not borrowed her car on October 20, 1995,

contrary to what Top Bear had told Larson. Mrs. Red Blanket

had not owned a car since March of that year. She further

testified that Top Bear had called her after being arrested and

requested her to provide a false alibi. Top Bear asked her

mother to tell the police that they had been together at

Winner, South Dakota, on the day of the robbery. In fact, Mrs.

Red Blanket had not been with Top Bear at all on that day. 

The money from the robbery was not found until April 5,

1996. A heavy equipment operator found the money in a red and

white cooler, lying in a roadside ditch south of Niobrara where

he was grading the road. He had spotted the cooler when he was

grading the road in early November as well but had not stopped

to pick it up at that time. The cooler also contained a can

of peanuts and some other small items. A fingerprint expert

examined the can of nuts and determined that fingerprints on

it matched those of Georgianna Top Bear. 

On the evening before the robbery, Ted Harris’s maroon

mini van was stolen from the parking lot of a bar in Lindy,

Nebraska, which is approximately 15 miles from Niobrara.

Harris immediately reported the van stolen and said that at the

time of its theft, a pair of leather gloves and an empty red

and white square cooler were inside the van. The mini van was

found the day after the robbery in a building on an abandoned

farm lot, approximately four or five miles south of Niobrara.

Hair samples were taken from the van, but none matched the

known hair samples of Top Bear or Hayes. 

The United States provided the defendants with

investigative reports concerning this case. Included was an

FBI report containing a witness’s statement that three men had

contacted him about participating in a future bank robbery in
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Niobrara. The three men allegedly involved were named in the

report, but the witness was not identified. Two days after the

trial of this case had commenced, Hayes and Top Bear filed a

motion to reveal the identity of the witness. The district

court denied the motion, 
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holding that it was not timely and that the defendants had made

an insufficient showing that the evidence would be exculpatory.

The jury convicted both defendants on both offenses. The

district court sentenced Top Bear to a term of imprisonment of

88 months on the armed robbery count and a concurrent 60-month

term of imprisonment on the conspiracy count. Hayes was

sentenced to a term of 121 months of imprisonment on the armed

robbery count and a concurrent 60-month term on the conspiracy

count. Both defendants appeal. 

II. Discussion

Hayes and Top Bear argue that the district court erred in

denying their motion to require the government to reveal the

identity of an informant. The informant had reported to the

FBI that three named individuals had discussed with him the

idea of robbing the Niobrara bank. The defendants contend that

the government’s refusal to disclose the identity of the

informant violated their due process rights as articulated in

Brady v. Maryland, 373 U.S. 83 (1963). The district court

denied the motion to compel disclosure, first noting that the

motion was untimely. The information that this witness had

identified three possible suspects and given their names was

provided to the defendants in November 1995, and the defendants

did not move for disclosure of the witness’s identity until

June 19, 1996 -- the second day of trial. Second, the district

court concluded that there was not a sufficient showing that

the government had withheld any material exculpatory evidence.

The government must disclose to the defense all evidence

that is “favorable to an accused” and “material either to guilt

or to punishment,” Brady, 373 U.S. at 87, including both
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exculpatory and impeachment evidence, regardless of whether the

defendant requests the information, United States v. Bagley,

473 U.S. 667, 682 (1985). Kyles v. Whitley, 514 U.S. 419, 432-

34 (1995); United States v. Gonzales, 90 F.3d 1363, 1368 (8th

Cir. 1996). For evidence to be considered material, there must

be “a 
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reasonable probability” that its disclosure would have altered

the result of the proceeding. Bagley, 473 U.S. at 682; United

States v. Harrington, 951 F.2d 876, 878 (8th Cir. 1991).

“[D]isclosure may be required where a defendant shows that it

would be relevant and helpful to the defense or essential to

a fair trial.” United States v. Bourbon, 819 F.2d 856, 859

(8th Cir. 1987) (citing Rovario v. United States, 353 U.S. 53

(1957)). Generally, it is not material to the outcome of a

case to disclose the identity of informants “who merely convey

information to the government but neither witness nor

participate in the offense.” Harrington, 951 F.2d at 878; see

Bourbon, 819 F.2d at 860. 

We conclude that the district court did not err in denying

the defendants’ motion to disclose the identity of the

informant in this instance. In November 1995, the government

timely produced the report of the FBI’s interview with an

unidentified informant who provided the names of three possible

suspects for the robbery, none of whom were Hayes or Top Bear.

Pretrial motions were scheduled to be filed by the end of

December 1995. While the defendants timely filed some pretrial

motions, they did not seek to compel the government to disclose

the identity of the confidential informant until two days after

the start of their trial in June 1996. The defendants offered

no good cause for waiting six months to request this alleged

Brady material. We agree with the district court’s conclusion

that the motion was untimely. Furthermore, the identity of

this particular informant, who neither witnessed nor

participated in the robbery at issue in this case, is not the

type of evidence that the government is compelled to produce.

The defendants made no showing that disclosure of this

informant’s identity was material to the outcome of their case.

They were provided with the names, addresses, dates of birth,

social security numbers, and criminal histories of each suspect

identified by the informant. They offered no explanation
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concerning why the information provided was insufficient or

what more they expected to learn from the informant. There

simply was no showing to indicate a reasonable probability that

disclosure of this informant’s identity would have changed the

outcome of the trial. Thus, we conclude 
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that the district court did not err in denying the defendants’

motion to compel disclosure of this informant’s identity. 

Georgianna Top Bear challenges the district court’s

partial denial of her motion to suppress evidence and

statements allegedly obtained in violation of the Fourth and

Fifth Amendments. Adopting the report and recommendation of

the magistrate judge, the district court denied Top Bear’s

motion to suppress the clothing seized from Paula Larson’s car,

concluding that she had abandoned them and therefore lacked

standing to challenge the seizure. Top Bear argues that she

did not abandon her clothing but retained a privacy interest

in them. 

“The touchstone of Fourth Amendment analysis is whether a

person has a ‘constitutionally protected reasonable expectation

of privacy.’” California v. Ciraolo, 476 U.S. 207, 211

(1986) (quoting Katz v. United States, 389 U.S. 347, 360 (1967)

(Harlan, J., concurring)). To prevail on her motion to

suppress the clothing, Top Bear had the burden to demonstrate

(1) that she had a subjective expectation of privacy -- a

question of fact which we review under a clearly erroneous

standard; and (2) that her subjective privacy expectation was

objectively reasonable -- a question of law, which we review

de novo. Ciraolo, 476 U.S. at 211; United States v. Stallings,

28 F.3d 58, 60 (8th Cir. 1994); United States v. Kiser, 948

F.2d 418, 423 (8th Cir. 1991), cert. denied, 503 U.S. 983

(1992). We are persuaded that the district court did not

clearly err in determining that Top Bear abandoned her

expectation of privacy in the bag of clothing. She wore the

clothing to Larson’s residence and there discarded them,

leaving them lying about. Larson picked them up and placed

them in the bag, but Top Bear was not interested in taking the

bag with her when she left Larson’s vehicle. Thus, Top Bear

offered no facts to indicate that she retained any expectation
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of privacy in the item seized, and absent a legitimate

expectation of privacy, Top Bear had no standing to challenge

the seizure of the clothing. Stallings, 28 F.3d at 60 (holding

defendant must have legitimate expectation of privacy in the

place searched or the item seized to have standing to challenge

the search or seizure under the Fourth 
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Amendment). Likewise, Top Bear lacked standing to challenge

the search of Larson’s car. See United States v. Muhammed, 58

F.3d 353, 355 (8th Cir. 1995). 

The district court also denied Top Bear’s motion to

suppress her statement that she had been in Yankton, South

Dakota, on the day of the robbery. We review de novo the

denial of a motion to suppress. United States v. Weinbender,

109 F.3d 1327, 1329 (8th Cir. 1997). “However, ‘a reviewing

court should take care both to review findings of historical

fact only for clear error and to give due weight to inferences

drawn from those facts by resident judges and local law

enforcement officers.’” Id. (quoting Ornelas v. United States,

116 S. Ct. 1657, 1663 (1996)). The district court found that

Top Bear volunteered her statement that she had been in Yankton

that day. The district court found that she made this

statement while FBI Special Agent Birnie was explaining the

procedure to her and before he had advised her of her rights

under Miranda v. Arizona, 384 U.S. 436 (1966). Thus, the court

concluded that the statement was not obtained in violation of

Miranda. The district court’s findings are not clearly

erroneous. Special Agent Birnie had not yet asked Top Bear to

explain her whereabouts during the day. He explained that he

wanted to ask her some questions concerning the events of the

day and asked her to step inside so he could advise her of her

rights before questioning her. When Top Bear then announced

that she had been in Yankton, prior to any actual questioning,

Special Agent Birnie immediately stopped her and advised her

of her rights. (See Motion to Suppress Tr., Jan. 24, 1996, at

28-29.) “Miranda does not protect an accused from a

spontaneous admission made under circumstances not induced by

the investigating officers or during a conversation not

initiated by the officers.” United States v. Hawkins, 102 F.3d

973, 975 (8th Cir. 1996) (internal quotations and citations

omitted), cert. denied, 117 S. Ct. 1456 (1997). We conclude
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that Top Bear’s statement about having been in Yankton that day

was not obtained in violation of Miranda, and the district

court did not err by denying her motion to suppress the

statement. 
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Finally, Top Bear contends that the evidence was

insufficient to support the jury verdicts finding her guilty

on both counts. We disagree. “To decide whether the evidence

is sufficient to support a verdict, the court views the

evidence in a light most favorable to the verdict and accepts

all reasonable inferences favorable to the [verdict] that

logically can be drawn from the evidence.” Johnson, 114 F.3d

at 812. We reverse a verdict for lack of sufficient evidence

“only when a reasonable fact finder could not have found the

defendant guilty beyond a reasonable doubt.” Id. We recited

the facts in the light most favorable to the verdict above.

Top Bear points out minor discrepancies in the eye witness

accounts and attacks the credibility of Robinette’s testimony.

Even where a defendant presents ample evidence from which a

jury could have found her not guilty, however, “the law is well

established that it is the jury’s function to evaluate the

credibility of witnesses.” Id. Our review of the record

convinces us that the evidence is sufficient to support the

jury verdicts in this case.

III. Conclusion

For the reasons stated above, we affirm the judgment of

the district court.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.