United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 96-3617

___________ United States of America, *

Plaintiff-Appellee, *

v. * Thomas Hayes, *

Defendant- * Appellant. * *

*

*

*

___________ Appeals from the Unite d States District Court for the No. 96-3715 District of Nebraska.

___________ United States of America, * * Plaintiff-Appellee, * * v. * * Georgianna Top Bear, * * Defendant-Appellant. *

___________ Submitted: March 11, 1997 Filed: July 15, 1997

___________

### The H ONORABLE PAUL A. MAGNUSON, Chief Judge, United State s 1 

### District Court for the District of Minnesota, sitting by designation. TheHonorable William G. Cambridge, Chief Judge, United States Distric t 2 

### Court for the District of Nebraska. -2- Befor e McMILLIAN and HANSEN, Circuit Judges, and MAGNUSON, 1 District Judge.

___________ HANSEN, Circuit Judge. Thomas Hayes and Georgianna Top Bear appeal their crimin al convictions of armed bank robbery and conspiracy to commit ban k
ro bbery. Hayes and Top Bear both contend that the distric t court erred by denying their motions to reveal the identity of

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a government witness. Additionally, Top Bear argues that the district court erred by denying her motion to suppress evidenc e and th at the evidence was insufficient to support he r convictions. We affirm.
I. Background

Anindictment charged Hayes and Top Bear with arme d ro bbery, in violation of 18 U.S.C. § 2113(a), (d) (1994), and
con spiracyto commit bank robbery, in violation of 18 U.S.C

. § 371 (1994). Viewing the evidence at trial in the light mos t favorable to the verdict, see United States v. Johnson , 11 4 F.3d 808 , 812 (8th Cir. 1997), the jury could have found th e follow ing facts. On October 20, 1995, the Farmers an d Mer chants State Bank in Niobrara, Nebraska, was robbed by a n individual wearing a brown trench coat, a dark ski mask tha t completely

covered the face, faded blue jeans, and white tenni s sh oes. Two tellers, a bank vice president, and two customers
we re 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 garb age bags into the bank and dropped one at the scene

. In total, $4,680 was taken.

On e customer, Jimmy Dean Robinette, heard the robber’ s voi ce, believed it was familiar, and described the robber a s having a Native American dialect. When the robber fled in a maroon mini van, Robinette pursuedthe robber and followed the min i van out of town. At the edge of town, the van turne d south and a Ford Tempo pulled in front of Robinette, als o appare ntlyfollowing the mini van. Robinette recognized th e dr iver of the Tempo as Thomas Hayes, a patron of the bar that Ro binette owned. At that moment, Robinette realized that the voice he recognized during the ban k robbery was that of Hayes’ wife, Georgianna Top Bear, who also was a patron of Robinette’ s ba r. Robinette was unable to keep up with the mini van an d returnedto town to report the names of the persons he believe d were involved in the robbery.
Chief Deputy Don Henery heard a radio broadcast advisin g that the bank had been robbed andthat the robber was driving
amaroon mini van south of town. He also heard the report tha t Thomas H ayes and Georgianna Top Bear were suspects. Hener y knew Hay es and Top Bear were married, and he knew where the y lived on rural tribal trust land. Henery drove to thei r residenc e and observed Hayes drive up in a Ford Tempo. Whe n Hayes saw the deputy, he immediately drove away. Hener y followedHayes, who led Henery on a high-speed chase. Afte r driving the Tempo off a four- to six-foot embankment, Haye s fi nally stopped his car. Hayes had his 2 1⁄2-year-old daughter in the car with him. Hayes told Henery that he fled becaus e he had a can of beer in the car, in violation of the terms of his pr obation for a prior felony conviction. Hayes consente d to a search of his car. The search produced two stockin g ma sks, gloves, and an empty BB gun box bearing a picture of a replica .45 caliber pistol. Offic ers found a Wal-Mart receipt

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fo r a makeup kit, another Wal-Mart receipt for an air pistol, and yet another Wal-Mart receipt for a three-hole mask an d gl oves -- all purchased on the morning of the robbery. Also, off icers 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 stor e inYankton, South Dakota. According to the pawn shop owner , Hayes ha d pawned these items early on the morning of th e robbery.

The same day, law enforcement officers secured a searc h warrant for the home of Hayes and Top Bear. During the search , officers seized a box of garbage b ags and a loose bag found on the floor. At approximately 11:00 p.m., Top Bear arrived a t the residence with a friend, PaulaLarson. While an agent was explaining the procedure, that is, that he would be asking her to expla in her whereabouts during the day, Top Bear offere d th at she had been in Yankton, South Dakota, during the day

. She was eventually taken to the county jail, where she provide d of ficers with two handwritten confessions, both of which were suppre ssedby the district court, because she had requeste d counse l and a government agent had initiated the subsequen t 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 hadbeen driving her mother’s car, experienced car trouble nea r Lynch, N ebraska, and had walked from there to Larson’s hom e (app roximately30 miles). Top Bear’s clothing was wet an d dirty. Larson gave her some dry c lothing and offered to drive Top Bear home. Larson gathered up Top Bear’s dirty clothin g and put them in grocery bags. Whe n they approached Top Bear’s home, t hey saw lights and police cars at the premises. To p Bear t old Larson, “Just keep going.” (Trial Tr. at 401. ) Lar sondrove past the residence, but they decided to return

. Top Bear said, “I might as well go back and face it.” ( Id. ) To p Bear left the clothing in Larson’s car. Larson asked Top Bearif she wanted the clothing, and Top Bear said she did not

. Larsonpermitted the officers to search her vehicle. La w enforcement officers seized the clothing from Larson’s car, an d

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the district court denied Top Bear’s motion to suppress thi s evidence.

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At trial, Top Bear’s mother, Mrs. Red Blanket, testifie d that To p Bear had not borrowed her car on October 20, 1995 , contraryto what Top Bear had told Larson. Mrs. Red Blanke t had not ow ned a car since March of that year. She furthe r testifiedthat Top Bear had called her after being arrested an d request edher to provide a false alibi. Top Bear asked he r mother t o tell the police that they had been together a t 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 wher e he was grading the road. He had spotted the cooler when he wa s grading the road in early Novemberas well but had not stopped to p ick it up at that time. The cooler also contained a ca n of peanuts and some other small items. A fingerprint exper t exa minedthe can of nuts and determined that fingerprints o n it matched those of Georgianna Top Bear.

Onthe evening before the robbery, Ted Harris’s maroo n mi ni van was stolen from the parking lot of a bar in Lindy , Nebr aska, which is approximately 15 miles from Niobrara

. Harris immediately reported the van stolen and said that at th e time o f its theft, a pair of leather gloves and an empty re d and white square cooler were insid e the van. The mini van was fo und the day after the robbery in a building on an abandoned fa rm lot, approximately four or five miles south of Niobrara. Hair samples were taken from the van, but none matched th e known hair samples of Top Bear or Hayes.

The United States provided the defendants wit h invest igative reports concerning this case. Included was a n FBI report containing a witness’s statement that three men had
co ntacted him about participating in a future bank robbery in

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Ni obrara. The three men allegedly involved were named in the report, but the witness was not identified. Two days after th e trial of this case had commenced, Hayes and Top Bear filed a mo tionto reveal the identity of the witness. The distric t court denied the motion,

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holdingthat it was not timely and that the defendants had mad e aninsufficient 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 cou nt and a concurrent 60-month term of imprisonment on the conspiracy count. Hayes wa s 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 den ying their motion to require the government to reveal th e identityof an informant. The informant had reported to th e FBI that three named individuals had discussed with him th e ideaof robbing the Niobrara bank. The defendants contend tha t the go vernment’s refusal to disclose the identity of th e in formant violated their due process rights as articulated in Brad yv. Maryland , 373 U.S. 83 (1963). The district cour t denied the motion to compel disclo sure, first noting that the motion w as untimely. The information that this witness ha d identi fiedthree possible suspects and given their names wa s providedto the defendants in November 1995, and the defendant s did not move for disclosure of the witness’s identity unti l June 19, 1996 -- the second day of trial. Second, the distric t cou rt concluded that there was not a sufficient showing tha t the government had withheld any ma terial exculpatory evidence.

The government must disclose to the defense all evidenc e that is “favorable to an accused” and “material either to guil t or to punishment,” Brady , 373 U.S. at 87, including bot h

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exculpatory

and impeachment evidence, regardless of whether th e de fendant 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 mus t be “a

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reasonable probability” that its d isclosure would have altered the result of the proceeding. Bag ley , 473 U.S. at 682; United State s v. Harrington , 951 F.2d 876, 878 (8th Cir. 1991)

. “[ D]isclosure may be required where a defendant shows that it wouldbe relevant and helpful to the defense or essential t o a fair trial.” United States v. Bourbon , 819 F.2d 856, 85 9 (8 th 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 i nformants “who merely convey in formationto the government but neither witness no r participate in the offense.” Harr ington , 951 F.2d at 878; see Bourbon , 819 F.2d at 860. We conclude that the district court did not err in denyi ng the de fendants’ motion to disclose the identity of th e in formant in this instance. In November 1995, the government timelyproduced the report of the FBI’s interview with a n unidentifiedinformant who provided the names of three possibl e suspects for the robbery, none of whom were Hayes or Top Bear. Pretri al motions were scheduled to be filed by the end o f December1995. While the defendants timely filed some pretria l motions, they did not seek to compel the government to disclos e the identity of the confidential informant until two days afte r the start of their trial in June 1 996. The defendants offered
no good cause for waiting six months to request this allege d Brady material. We agree with the district court’s conclusio n that the motion was untimely. Furthermore, the identity o f this particular informant, who neither witnessed no r pa rticipated in the robbery at issue in this case, is not the ty pe of evidence that the government is compelled to produce. The de fendants made no showing that disclosure of thi s informant’s identity was material to the outcome of their case

. Th ey were provided with the names, addresses, dates of birth, social security numbers, and criminal histories of each suspec t identi fiedby the informant. They offered no explanatio n

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concer ning why the information provided was insufficient o r wh at more they expected to learn from the informant. Ther e simply was no showing to indicate a reasonable probability tha t disclosure of this informant’s ide ntity would have changed the outcome of the trial. Thus, we conclude

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that the district court did not er r in denying the defendants’ motion to compel disclosure of this informant’s identity. Georgianna Top Bear challenges the district court’ s partia l denial of her motion to suppress evidence an d statem ents allegedly obtained in violation of the Fourth an d Fifth Amendments. Adopting the report and recommendation o f the ma gistrate judge, the district court denied Top Bear’ s motionto suppress the clothing seized from Paula Larson’s car , conclu ding that she had abandoned them and therefore lacke d standing to challenge the seizure. Top Bear argues that sh e did not abandon her clothing but retained a privacy interes t in them.

“The touchstone of Fourt h Amendment analysis is whether a personhas a ‘constitutionally protected reasonable expectatio n of pr ivacy.’” California v. Ciraolo , 476 U.S. 207, 21 1 (1986) (quoting Katz v. United States , 389 U.S. 347, 360 (1967 ) (Harlan, J., concurring)). To prevail on her motion t o suppress the clothing, Top Bear had the burden to demonstrate (1) th at she had a subjective expectation of privacy -- a ques tionof fact which we review under a clearly erroneou s st andard; and (2) that her subjective privacy expectation was obj ectivelyreasonable -- a question of law, which we revie w de novo. Ciraolo , 476 U.S. at 211; United States v. Stallings , 28 F.3d 58, 60 (8th Cir. 1994); United States v. Kiser , 94 8 F.2d 4 18, 423 (8th Cir. 1991), cert. denied , 503 U.S. 98 3 (1992 ). We are persuaded that the district court did no t clearl yerr in determining that Top Bear abandoned he r expectat ionof privacy in the bag of clothing. She wore th e clot hing to Larson’s residence and there discarded them , le aving them lying about. Larson picked them up and place d them in the bag, but Top Bear was not interested in taking the bag with her when she left Larson’s vehicle. Thus, Top Bea r offered no facts to indicate that she retained any expectation

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of pri vacy in the item seized, and absent a legitimat e expectation of privacy, Top Bear had no standing to challenge the seizure of the clothing. Stallings , 28 F.3d at 60 (holdin g defend ant must have legitimate expectation of privacy in th e place searched or the item seized to have standing to challeng e the search or seizure under the Fourth

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Amendm ent). Likewise, Top Bear lacked standing to challeng e 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 t o supp ress her statement that she had been in Yankton, Sout h Dakota , on the day of the robbery. We review de novo th e de nial of a motion to suppress. United States v. Weinbender , 109 F.3d 1327, 1329 (8th Cir. 1997). “However, ‘a reviewin g cou rt should take care both to review findings of historica l fact only for clear error and to g ive due weight to inferences drawn from those facts by resident judges and local la w enforcement officers.’” Id. (quoting Ornelas v. United States , 11 6 S. Ct. 1657, 1663 (1996)). The district court found that TopBear volunteered her statement that she had been in Yankto n th at day. The district court found that she made thi s statem ent while FBI Special Agent Birnie was explaining th e procedur e to her and before he had advised her of her right s under Miranda v. Arizona , 384 U.S. 436 (1966). Thus, the cour t co ncluded that the statement was not obtained in violation of Mirand a . The district court’s findings are not clearl y erroneous. Special Agent Birnie h ad not yet asked Top Bear to
explain her whereabouts during the day. He explained that he
wa nted to ask her some questions concerning the events of the day and asked her to step inside s o he could advise her of her rig hts before questioning her. When Top Bear then announce d that she had been in Yankton, prio r to any actual questioning, Specia l Agent Birnie immediately stopped her and advised he r of her rights. ( See Motion to Sup press Tr., Jan. 24, 1996, at 28-29.) “ Miranda does not protect an accused from a sp ontaneous admission made under circumstances not induced by the investigating officers or during a conversation no t initiatedby the officers.” United States v. Hawkins , 102 F.3 d 973, 9 75 (8th Cir. 1996) (internal quotations and citation s omitted), cert. denied , 117 S. Ct. 1456 (1997). We conclud e

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that Top Bear’s statement about having been in Yankton that da y was not obtained in violation of Miranda , and the distric t court did not err by denying her motion to suppress th e statement.

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Final ly, Top Bear contends that the evidence wa s insuff icient to support the jury verdicts finding her guilt y on both counts. We disagree. “To decide whether the evidence is sufficient to support a verdict, the court views th e ev idence in a light most favorable to the verdict and accepts all reasonable inferences favorable to the [verdict] tha t lo gically can be drawn from the evidence.” Johnson , 114 F.3d at 812. We reverse a verdict for lack of sufficient evidence “onlywhen a reasonable fact finder could not have found th e de fendant guilty beyond a reasonable doubt.” Id. We recited th e facts in the light most favorable to the verdict above

. Top Bear points out minor discrepancies in the eye witnes s accounts and attacks the credibili ty of Robinette’s testimony. Even whe re a defendant presents ample evidence from which a jury could have found her not guilty, however, “the law is wel l esta blishedthat it is the jury’s function to evaluate th e credib ilityof witnesses.” Id. Our review of the recor d convince s us that the evidence is sufficient to support th e jury verdicts in this case.
III. Conclusion

For the reasons stated above, we affirm the judgment o f the district court.
A true copy.

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