Coon v. United States

• Citation: 360 F.2d 550
• Decision Date: 12 May 1966
• Docket Number: No. 18057.,18057.
• Parties: Darwin Evert COON, Appellant, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

360 F.2d 550 (1966)

Darwin Evert COON, Appellant, v. UNITED STATES of America, Appellee.

No. 18057.

United States Court of Appeals Eighth Circuit.

May 12, 1966.

Charles R. Wolle, Sioux City, Iowa, for appellant.

Richard J. Vipond, Asst. U. S. Atty., Sioux City, Iowa, for appellee and on brief with Donald E. O'Brien, U. S. Atty., and Charles W. Ehrhardt, Asst. U. S. Atty., Sioux City, Iowa.

Before MATTHES, MEHAFFY and GIBSON, Circuit Judges.

MATTHES, Circuit Judge.

A jury found Darwin Evert Coon, appellant, guilty of violating Title 18 U.S. C.A. § 2113(e).¹ The court entered judgment imposing a prison sentence of twenty years and provided further that appellant shall become eligible for parole at such time as the Board of Parole may determine pursuant to Title 18 U.S.C.A. § 4208(a) (2).²

The facts antedating the filing of the indictment are significant.

The offenses, footnote 2, supra, were committed on August 20, 1958, by appellant and George Albert Mills. The offenders were apprehended shortly after the commission of the crimes. Lawyers were appointed by the court to represent them. On September 30, 1958, after arraignment, they waived prosecution by indictment and on that day a four-count information was filed in the United States District Court for the Northern District of Iowa, alleging commission of the same four offenses charged in the indictment returned in this prosecution. Coon and Mills entered a plea of guilty and received concurrent sentences of twenty years, ten years, twenty years, and twenty years, on Counts I, II, III and IV, respectively, of the information.

On September 6, 1963, more than five years after the offenses had been committed, appellant, while serving a ten-year sentence for jail break and assault, filed a motion in the nature of a writ of error coram nobis, to set aside the judgment and sentence of September 30, 1958.³ Coon urged that he had been charged with and convicted of a capital offense (18 U.S.C.A. § 2113(e)), and relying upon Rule 7(a) F.R.Crim.P.; Smith v. United States, 360 U.S. 1, 79 S.Ct. 991, 3 L.Ed. 2d 1041 (1959), and other cases, contended that prosecution by indictment, rather than by information, was a prerequisite to the court's power to hear the case. The district court agreed. On October 21, 1963, the judgment and sentence of September 30, 1958, was vacated.

After the indictment herein was filed, the court appointed lawyers to represent appellant. They filed a motion to quash the indictment on the ground that prosecution of the four alleged offenses was barred by the five-year statute of limitations, Title 18 U.S.C.A. § 3282. After due consideration, the court, The Honorable William C. Hanson, in a memorandum opinion (unreported), held that Counts I, II and III of the indictment were barred, and dismissed those counts. The court further found, however, that Count IV was not barred because this count charged a capital offense and was not within the ambit of the five-year statute of limitations.

On this appeal, appellant contends: (1) the court erred in denying his motion for judgment of acquittal for the reason that the evidence failed to prove that appellant forced banker Hart to accompany him, without Hart's consent, to the bank in order that appellant could enter and commit larceny therein; (2) the prosecution is barred by the five-year statute of limitations; (3) the indictment, trial and sentence constitute double jeopardy; (4) the judgment entered by the court is illegal. We affirm.

SUFFICIENCY OF THE EVIDENCE

In resolving the question of whether a submissible case was made, we are required to view the evidence in the light most favorable to the prevailing party; i. e., we must determine whether the evidence in its most favorable aspect to the Government is legally capable of allowing a jury to be persuaded of guilt. National Dairy Products Corp. v. United States, 350 F.2d 321, 325 (8 Cir. 1965); Beatrice Foods Co. v. United States, 312 F.2d 29, 40 (8 Cir. 1963), cert. den., 373 U.S. 904, 83 S.Ct. 1289, 10 L.Ed.2d 199. So viewing the record, we conclude, without hesitation, that the case was properly submitted to the jury and that the jury's verdict is responsive to the evidence. Indeed, the evidence of guilt was strong and convincing.

Appellant and Mills escaped from Nevada State Prison on August 11, 1958, where they had been imprisoned for burglary and armed robbery.⁴ They went to Correctionville, Iowa, for the avowed purpose of burglarizing or robing Cotton Belt State Bank. After gaining entrance into the home of Peter Stoltz Hart, President of the bank, on the evening of August 20, 1958, appellant exhibited a loaded 45-caliber pistol and Mills an opened switchblade knife. Hart and his wife were threatened, their hands and feet were tied and a "gag" was placed in Mrs. Hart's mouth. Under threats of bodily harm, Hart furnished Mills the correct combinations to the bank vault. While Mr. and Mrs. Hart were held captive by appellant, Mills went to the bank and tried, without success, to open the vault. He returned to the Hart home in an angry mood, apparently believing that Hart had furnished him incorrect combinations. Hart, under fear of bodily harm, offered to go to the bank to open the vault. Instead of accepting this offer, appellant went to the bank, leaving the Harts as captives of Mills. Appellant too was unable to open the vault and upon his return he and Mills decided that Hart should be taken to the bank. This was done. Hart drove his automobile, and appellant, with the loaded pistol in his hand, sat next to Hart. Mills remained and kept Mrs. Hart under guard. After Hart opened the vault in the presence of appellant, who was still armed, they returned to the Hart home. Mr. and Mrs. Hart were taken to a bedroom, tied up again, and thereupon appellant and Mills left the Hart home. Appellant and Mills returned to the bank and took all of the available silver money, which amounted to approximately $2,795.

All of the above facts were established by the testimony of Government witnesses. Appellant did not deny being in the Hart home and holding the Harts as captives by use of the pistol and knife. He attempted, by his testimony, to convince the jury that Hart freely and voluntarily accompanied appellant to the bank and opened the vault doors. The jury obviously did not accept appellant's version and neither do we. Overwhelming evidence was introduced to prove that appellant and Mills resorted to force. Not only were Mr. and Mrs. Hart physically mistreated but they were subjected to threats of bodily harm during their three hours of captivity. Psychological coercion was exerted by the display of deadly weapons. Mr. Hart testified that "everything was against my will". Certainly a jury could reasonably find that Hart's offer to go to the bank, the ensuing trip, and his opening of the vault doors, resulted entirely from fear induced by a display of the knife and gun, and that he was forced to accompany appellant. Quite understandably, Hart would have taken any action to prevent bringing harm to his wife and himself. In summary, the evidence irresistibly points to the conclusion that Hart was forced to accompany appellant, without consent, in order to enable appellant to unlawfully enter the bank and to commit larceny therein.

STATUTE OF LIMITATIONS

Appellant contends that the prosecution is barred by the five-year statute of limitations. The statutes in question provide:

§ 3281. "An indictment for any offense punishable by death may be found at any time without limitation except for offenses barred by the provisions of law existing on August 4, 1939."

§ 3282. "Except as otherwise expressly provided by law, no person shall be prosecuted, tried, or punished for any offense, not capital, unless the indictment is found or the information is instituted within five years next after such offense shall have been committed." (Emphasis supplied).

Appellant's position is that since the death penalty was not assessed under § 2113(e), the crime is not a "capital offense" within the meaning of the above statutes and is consequently subject to the five-year statute of limitations, § 3282. In contending for application of the five-year statute, appellant has conveniently changed his theory and argues in direct contradiction to the proposition he successfully urged in support of his writ of error coram nobis to set aside the first conviction; i. e., that the offense of which he was charged and convicted under § 2113(e) was a capital offense.⁵

Thus, the question is: do the courts look to the charge as laid in the indictment or to the ultimate result of the trial in determining whether the offense under § 2113(e) is punishable by death within the meaning of the no-limitations statute?

It is beyond dispute that when an accused is charged, as here, with forcing a person to accompany him, without the consent of such person, he is charged and may be tried for an offense that may be punished by death.⁶ To be sure, the jury must so direct before the extreme penalty can be assessed, but that circumstance does not alter the fact that the offense itself is one which may subject the offender to death. As we have seen, the no-limitation statute, § 3281, provides: "An indictment for any offense punishable by death may be found at any time without limitation", etc.⁷ The clear and ordinary meaning of the words unquestionably encompasses any offense for which the death penalty may be imposed.

To hold, as appellant contends, that the death penalty must actually be assessed before an offense becomes "capital" within the meaning of the statutes under consideration, would lead to the absurd result of subordinating the administration of criminal justice to a formula that would dictate either death or freedom in all offenses proscribed by § 2113(e) where the indictment has not been found within five years from the date the offense was committed or from the date the...