407 F.2d 53 (3rd Cir. 1969), 16906, United States v. Chester

Docket Nº:16906.
Citation:407 F.2d 53
Party Name:UNITED STATES of America v. James Cames CHESTER, Ronnie Lee Murray, Charleston Lewis, James Cames Chester, Appellant.
Case Date:February 04, 1969
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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407 F.2d 53 (3rd Cir. 1969)

UNITED STATES of America

v.

James Cames CHESTER, Ronnie Lee Murray, Charleston Lewis, James Cames Chester, Appellant.

No. 16906.

United States Court of Appeals, Third Circuit.

February 4, 1969

Argued Jan. 7, 1969.

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Thomas B. Rutter, Litvin & Rutter, Philadelphia, Pa., for appellant.

Robert J. Cirafesi, Asst. U.S. Atty., Newark, N.J. (David M. Satz, Jr., U.S. Atty., Newark, N.J., on the brief), for appellee.

OPINION

Before BIGGS, FORMAN and FREEDMAN, Circuit Judges.

FREEDMAN, Circuit Judge:

James Cames Chester appeals from his conviction by a jury of conspiring to violate the bank robbery statute (18 U.S.C. § 2113(a), (b), (d)) and of violating the substantive sections of the statute as an aider and abettor under 18 U.S.C. § 2.

An armed robbery of the Lyons Avenue Branch of the Fidelity Union Trust Company in Newark, New Jersey, was committed on July 12, 1966. The participants at the time were Chester's codefendants, Murray and Lewis, together with a man called Willie, who was not apprehended. Murray and Lewis confessed to the crime and the involvement of their accomplice, Willie. They later told the authorities of Chester's participation in the planning of the robbery and the division of the spoils.

Murray and Lewis pleaded guilty and their testimony was the cornerstone of the case against Chester, who pleaded not guilty.

Appellant's court-appointed counsel asserts that the government's evidence shows that Chester effectively withdrew from the conspiracy before the robbery. Hence he argues that testimony regarding events and conversations which occurred among the conspirators after Chester withdrew was inadmissible against him and also that the trial judge should have instructed the jury on what constitutes a withdrawal from the conspiracy and the effect of withdrawal before the conspiracy is executed. No mention was made of the theory of withdrawal at the trial, but it is urged that this omission in the charge was plain error under Rule 52(b) of the Federal Rules of Criminal Procedure.

The difficulty with these contentions is that there is nothing in the government's case which required submission to the jury of the factual issue on which they rest. Viewed in the light

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most favorable to the defendant the government's evidence does not furnish a basis for a...

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