United States v. Schroeder

• Decision Date: 25 January 1971
• Docket Number: 20064.,20057,No. 20056,20056
• Citation: 433 F.2d 846
• Parties: UNITED STATES of America, Appellee, v. Jerome Burton SCHROEDER, Appellant. UNITED STATES of America, Appellee, v. Anthony August MOSSER, Appellant. UNITED STATES of America, Appellee, v. Warren James ALLEN, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

433 F.2d 846 (1970)

UNITED STATES of America, Appellee, v. Jerome Burton SCHROEDER, Appellant.

UNITED STATES of America, Appellee, v. Anthony August MOSSER, Appellant.

UNITED STATES of America, Appellee, v. Warren James ALLEN, Appellant.

Nos. 20056, 20057, 20064.

United States Court of Appeals, Eighth Circuit.

October 7, 1970.

Certiorari Denied January 25, 1971.

Wallace A. Thompson, Winnebago, Minn., for appellant Schroeder.

Warren E. Peterson, St. Paul, Minn., for appellant Mosser.

Raymond W. Faricy, Jr., St. Paul, Minn., for appellant Allen.

Neal J. Shapiro, Minneapolis, Minn., for appellee; Robert G. Renner, U. S. Atty., on the brief.

Before JOHNSEN, Senior Circuit Judge, and VAN OOSTERHOUT and HEANEY, Circuit Judges.

Certiorari Denied January 25, 1971. See 91 S.Ct. 590.

HEANEY, Circuit Judge.

On December 13, 1968, the First National Bank of Good Thunder, Minnesota, was robbed of $6,436. Defendants Allen, Mosser, Schroeder and Ewert were charged in this offense with bank robbery and assault in violation of 18 U.S.C. § 2113(a) and (b). Each was found guilty in a jury trial in the Federal District Court for the District of Minnesota. Defendants Allen, Mosser and Schroeder appeal their convictions to this Court. We affirm.

We discuss the contentions of the defendants seriatim.

I

Defendants Allen, Mosser and Schroeder contend that, in light of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), the District Court erred in permitting testimony about a conversation a witness had with two of the defendants, and that a subsequent instruction to disregard the testimony did not cure the error.

The government called David Haugh as a witness. He testified that he was at the home of Mosser's father about three months after the robbery occurred; that Mosser and Schroeder were with him; that all three men drank a good deal of beer and that he became intoxicated; that while in this condition, Mosser and Schroeder discussed the robbery. Haugh was asked repeatedly if he could remember what was said and who said it. He replied he could not. He was nevertheless permitted to state, over objection, "Well, they said they just generally robbed Good Thunder Bank." At this point, the defendants objected so strenuously that the jury was withdrawn and Haugh was questioned further. The examination confirmed what was earlier apparent, that Haugh could not recall any specific statements by Mosser or Schroeder.

At this point, the government withdrew Haugh as a witness, and the court, on the defendants' request, instructed the jury:

"* * * You are instructed to disregard any testimony that was given by Mr. Haugh concerning an alleged conversation between Haugh and any of the defendants. Just completely disregard it."

Defendant Allen was not prejudiced by Haugh's testimony since Haugh did not mention Allen or allude to him. Therefore, as to him, there was no error in permitting Haugh's testimony.

It was error, however, to permit the testimony with respect to Mosser and Schroeder. Not only did Haugh concede that he was intoxicated when the alleged conversation took place, but it was obvious, moments before the challenged testimony was given, that Haugh had no recollection as to who had made the incriminating statement. Under these circumstances, the lack of foundation was clear. But we cannot agree that the error was prejudicial.

If a proper foundation had been laid, Haugh's testimony regarding the statements by the defendants would have been admissible against the defendant making the statement as an admission against interest, and as an adoptive admission against the other defendant if he were shown to be present. See, Arpan v. United States, 260 F.2d 649, 655 (8th Cir. 1958). Such admissions are not excludible under Bruton. Campbell v. United States, 415 F.2d 356 (6th Cir. 1969).¹

Furthermore, Haugh's testimony was weak because of his obvious inability to recall the situation about which he testified. His testimony was, therefore, not significantly incriminating. The weakness of Haugh's testimony, combined with the court's order to strike the testimony and his instruction to the jury to disregard it as to all defendants, rendered any error harmless. See, United States v. Lipowitz, 401 F.2d 591 (3rd Cir. 1968), cert. denied, sub nom Muller v. United States, 395 U.S. 924, 89 S.Ct. 1778, 23 L.Ed.2d 240 (1969).

II

Defendant Schroeder contends that the evidence was insufficient to prove him guilty beyond a reasonable doubt.² We cannot agree.

At the outset, we note that we are required to view the evidence and the reasonable inferences therefrom in the light most favorable to the government. Kirschbaum v. United States, 407 F.2d 562 (8th Cir. 1969); Moore v. United States, 375 F.2d 877 (8th Cir.), cert. denied, 389 U.S. 844, 88 S.Ct. 92, 19 L. Ed.2d 110 (1967); Coon v. United States, 360 F.2d 550 (8th Cir.), cert. denied, 385 U.S. 873, 87 S.Ct. 145, 17 L.Ed. 2d 100 (1966).

The evidence establishes that the First National Bank of Good Thunder was robbed just before 10:00 A.M. on December 13, 1968. Two or three masked robbers were observed in the Bank, and three or four masked robbers were seen driving from the Bank. None of the witnesses inside or outside of the bank identified the robbers.

The government established the identity of the defendants through the testimony of Clifford Lindholm, an acquaintance of the defendants. He testified to conversations with the defendants before and after the robbery. These conversations clearly implicated the defendant Schroeder. Lindholm testified that:

1. He participated in a conversation at Mosser's home on December 8, 1968, with Allen, Mosser and Schroeder. Allen asked Mosser and Schroeder if they wanted to rob a bank. Each replied that he did.

2. He had a second conversation with Allen and Mosser on December 12, 1968, at Mosser's house. Allen identified the bank to be robbed as the First National Bank of Good Thunder and the car to be used as a 1967 or 1968 Mercury station wagon. Mosser stated that he had been in the Good Thunder Bank that afternoon and that it had two vaults. Mosser displayed a map of the bank.

We note that Schroeder was not present at the second conversation. Lindholm's testimony was admissible against him, however, under the rule that once a conspiracy has been established,³ an incriminating extrajudicial statement made by one defendant is admissible in evidence against his codefendants if made while the conspiracy is pending and in furtherance of its objective regardless of the presence or authorization of the codefendants, and regardless of whether a conspiracy has been charged. Lutwak v. United States, 344 U.S. 604, 73 S.Ct. 481, 97 L.Ed. 593 (1953); Krulewitch v. United States, 336 U.S. 440, 69 S.Ct. 716, 93 L.Ed. 790 (1949); Hanger v. United States, 398 F.2d 91 (8th Cir. 1968), cert. denied, 393 U.S. 1119, 89 S.Ct. 995, 22 L.Ed.2d 124 (1969). See, Annot. 1 L.Ed.2d 1780 (1956).

Lindholm also testified that he had a conversation with Schroeder and the other three defendants on the afternoon of December 13, 1968, subsequent to the bank robbery. He testified that the following statements were made:

1. Allen stated that the four defendants had robbed the bank, that the robbery went over pretty good, and that there was a telephone call during the robbery for a woman employee.

2. Schroeder stated that he stood by the door in the bank to watch for customers.

3. Mosser stated that he drove the automobile used in the robbery.

While much of this testimony was hearsay, it was admissible under the exceptions to the hearsay rule. Schroeder's own statements were admissible against him as admissions against interest. The statements of the others were admissible against him as adoptive admissions. The evidence is clear that Schroeder was present at the conversation and that he participated in it. He neither denied nor objected to the statements of his codefendants. Under these circumstances, his silence was properly viewed as acquiescence in the truth of the statements, particularly since the statements were made in the presence of a third person who was not an accomplice in the robbery. See, Campbell v. United States, 269 F.2d 688 (1st Cir. 1959), vacated on other grounds, 365 U.S. 85, 81 S.Ct. 421, 5 L.Ed.2d 428 (1961); Arpan v. United States, supra; IV Wigmore on Evidence § 1071 (3rd Ed. 1940).⁴

Schroeder contends that Lindholm's testimony was contradictory and unbelievable and that parts of it were contradicted by an alibi witness. The question of who to believe, however, is for the jury. Here, where Lindholm was witness to an incriminating statement made after the robbery and where his testimony regarding the robbery was specific, there was sufficient evidence from which the jury could find Schroeder guilty.

Furthermore, Lindholm's testimony was corroborated by other witnesses. Three witnesses stated that they saw two robbers, that a third man stood watch by the door, and that the wrists of the victims had been taped. One witness testified that she had observed a dark colored station wagon outside the bank on the morning of the robbery, and another witness stated that he observed a dark 1966 or 1967 station wagon travel from the location of the bank to a point in Blue Earth County, near Wells. Other witnesses testified that the phone rang during the robbery, and that a man answered it. All of this testimony corroborated Lindholm's, and imparted to it sufficient weight to sustain Schroeder's conviction.

III

Defendants Allen and Schroeder contend that the District Court erred in denying their pretrial motions for severance. Schroeder contends that, in a separate trial, Lindholm's testimony would have been inadmissible against him, and Allen contends that Haugh's testimony would have been inadmissible against him.

With regard to Schroeder's claim, we have already found Lindholm's testimony regarding Schroeder's involvement to...