United States v. Radford

• Decision Date: 31 May 1966
• Docket Number: No. 10101.,10101.
• Citation: 361 F.2d 777
• Parties: UNITED STATES of America, Appellee, v. John RADFORD a/k/a John Ratkovich, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

361 F.2d 777 (1966)

UNITED STATES of America, Appellee, v. John RADFORD a/k/a John Ratkovich, Appellant.

No. 10101.

United States Court of Appeals Fourth Circuit.

Argued April 7, 1966.

Decided May 31, 1966.

Arthur W. Kupfer, Baltimore, Md. (Court-assigned counsel), for appellant.

Thomas J. Kenney, U. S. Atty. (Fred Kelly Grant, Asst. U. S. Atty., on brief), for appellee.

Before BOREMAN and J. SPENCER BELL, Circuit Judges, and BARKSDALE, District Judge.

BARKSDALE, District Judge:

Upon his plea of not guilty, John Radford was found guilty by a jury in the District Court for the District of Maryland on April 22, 1965, upon an indictment charging him with bank robbery in violation of 18 U.S.C.A. § 2113. After his motion for a new trial had been overruled, he was sentenced to a term of twenty years' imprisonment, to be eligible for parole at the determination of the Parole Board. From this conviction and sentence, Radford has prosecuted his appeal to this court. Briefly stated, the pertinent facts are as follows:

THE FACTS

Shortly after it had opened on November 6, 1964, the federally insured Peoples National Bank, at its Adelphi, Maryland, branch, was robbed by a white man wearing a light tan raincoat, a tan or grayish rain hat, dark rimmed glasses, and a white mask. As he entered the bank carrying an automatic pistol in his hand, he announced, "This is a hold up.", and ordered everyone to get down on the floor. Before obeying this order, two of the bank employees pressed alarm buttons connected with the County Police Department, and this signal was received in its Hyattsville office at 9:23 A.M.

There were six people in the bank at the time, two customers and four employees. Threatening to shoot two employees if they did not get down on the floor, the robber went behind the tellers' cages to the cash drawers at their windows and took $2,348.00. After taking the money, he hastily left the bank by the front door, turned to his right, and pulled his mask from his face.

The bank is located in a small shopping center near the University of Maryland. The shopping center consisted of one building divided into five different business locations, with a sidewalk running the full length of the front of the building. As the robber left the bank, a salesgirl of John's Bargain Store, next door to the bank, was returning to the store with coffee. As the robber came out of the bank, she was quite close to him, and looked him full in the face after he had taken off his mask and glasses. She had an even better look at him when he stopped a little more than five yards from her, turned and faced her when he stopped to pick up his hat which had fallen off. Another lady who had parked to go into the Laundromat saw him stop to pick up his hat, observed his light colored raincoat and rain hat, and saw him jump into a light colored compact. Of course, all four of the bank's employees saw and observed him closely while he was in the bank. Two of them ran from the bank immediately after the robber left and saw him get into a tan Corvair. One of these employees, George, ran after it, getting within thirty feet of the car and parallel to it, and had a good look at the then unmasked driver. George noted the license number, and although, when he wrote it down, he made an error as to one letter, he noted that it was a Maryland license tag and the testimony and records from the Commissioner of Motor Vehicles for Maryland showed, beyond doubt that this license tag had been issued to the defendant, John Radford, 9006 Manchester Road, Silver Springs, Maryland, for a 1964 Corvair.

Police and F.B.I. agents arrived at the bank within minutes after the robber had fled. During the day, a picture of the defendant Radford was shown to several witnesses. Two of these witnesses, who had the best look at the defendant, positively identified the photograph as being the defendant, John Radford. Upon the information they had, F. B. I. agents procured an arrest warrant for the defendant, charging him with the robbery, and placed him under arrest between 4:00 and 5:00 o'clock, when he came to the office of his employer, Beltone Hearing Aid Company in Washington. Defendant was a college graduate and had attended law school, but had not graduated. He was fully advised of his Constitutional rights, and spoke by telephone with an attorney before he was turned over to the Washington police to await appearance before a United States Commissioner the next morning, the Commissioner not being available that evening. Defendant denied having anything to do with the Adelphi Bank robbery. However he told the agents that his car was parked across the street in a parking garage, and that he owned two guns, one of which was in his car. A search of defendant revealed his parking ticket, which the agents took. F. B. I. agents were promptly detailed to keep his car under surveillance.

That night, the defendant was viewed in a lineup by five witnesses who had seen him in or running from the bank that morning, and four of them positively identified him as the robber. The fifth witness picked the defendant out of the lineup, and although declining to positively identify him, said that he was "identically similar" to the robber. During the trial, four of these witnesses positively identified the defendant as the bank robber, even though he chose to sit outside the rail and not at the trial table.

At the trial, defendant denied all connection with the robbery, and undertook to establish an alibi. The evidence relied on by defendant to establish an alibi was by no means convincing, and upon the evidence of the witnesses who positively identified him as the robber, as well as evidence that, although in financial difficulty shortly before the robbery, defendant on the day of the robbery paid two months' rent plus an airconditioning charge, a total of $260.00, deposited $90.00 in a bank, made an overdue payment on his car, and had $386.00 on his person when arrested, and the evidence that the car used by the robber bore tags issued to him, the jury found the defendant guilty as charged. From this judgment of conviction, the defendant has prosecuted this appeal.

DISCUSSION

Upon his appeal, the appellant, by counsel, raises three questions as follows:

"1. Was the setting of bail at an unreasonable figure of $15,000 a denial of Defendants Constitutional right?

"2. Was it error to allow the evidence taken from Defendants automobile into evidence at the trial of this case?

"3. Was the evidence presented by the United States sufficient to prove guilt beyond a reasonable doubt?"

Taking up these questions in the same order, it appears that initially the United States Commissioner set bail for the defendant in the amount of $15,000.00. Shortly thereafter, on November 17, 1964, defendant filed his petition in the District Court for a reduction of bail. After a hearing on this petition, at which testimony was taken, the District Judge, on November 27, 1964, denied the petition. Thereafter, a similar petition was presented to Honorable Simon E. Sobeloff, one of the Judges of the United States Court of Appeals for the Fourth Circuit, and Judge Sobeloff also denied the petition Upon the subject of bail, the applicable provisions of the Federal Rules of Criminal Procedure are as follows:

"Before Conviction. A person arrested for an offense not punishable by death shall be admitted to bail. A person arrested for an offense punishable by death may be admitted to bail by any court or judge authorized by law to do so in the exercise of discretion, giving due weight to the evidence and to the nature and circumstances of the offense." Rule 46(a) 1.

"Amount. If the defendant is admitted to bail, the amount thereof shall be such as in the judgment of the commissioner or court or judge or justice will insure the presence of the defendant, having regard to the nature and circumstances of the offense charged, the weight of the evidence against him, the financial ability of the defendant to give bail and the character of the defendant." Rule 46(c).

It is, of course, well settled that the fixing of the amount of bail is "peculiarly a matter of discretion with the trial court." Kaufman v. United States (9 Cir.), 325 F.2d 305. A refusal to reduce the amount of bail once set should be set aside by an appellate court only when the trial court has abused its discretion. United States v. Foster (4th Cir.) 296 F.2d 249, 251; Stack v. Boyle, 342 U.S. 1, 13, 72 S.Ct. 1, 96 L.Ed. 3.

In considering the question of whether he should reduce bail, the District Judge knew that the defendant was charged with bank robbery by intimidation and by putting the employees of the bank in jeopardy by the use of a dangerous weapon, one of the most serious of federal offenses; he knew that the weight of the evidence against defendant was strong; and he was also advised that the defendant was under strong suspicion of robbing two other nearby banks. In fact, before his trial, defendant was indicted for committing the two other bank robberies. Under these circumstances, we are satisfied that the District Judge acted properly in refusing to reduce defendant's bail: certainly, he acted well within his discretion.

Counsel contends that the District Judge should have reduced defendant's bail by reason of his inability to post bail in the required amount. It is true that one of the considerations which, in fixing the amount of bail the judge should consider, is "the financial ability of the defendant to give bail", but that is only one of several considerations, and certainly should not control and require that the other considerations be ignored.

Defendant contends that the setting of an amount of bail in excess of his means was, in effect, the denial of his Constitutional rights to bail and deprived him of an opportunity to prepare his defense. For this proposition, counsel cites no authority. It is quite true that the ...