United States v. Riley, 20007-20008.

• Decision Date: 09 December 1970
• Docket Number: No. 20007-20008.,20007-20008.
• Citation: 435 F.2d 725
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Clinton RILEY, Jr., and Dennis Hodrick, Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

435 F.2d 725 (1970)

UNITED STATES of America, Plaintiff-Appellee, v. Clinton RILEY, Jr., and Dennis Hodrick, Defendants-Appellants.

Nos. 20007-20008.

United States Court of Appeals, Sixth Circuit.

December 9, 1970.

David A. X Bradley (Court appointed), Cincinnati, Ohio, on brief for appellants.

William W. Milligan, U. S. Atty., Byron E. Trapp, Asst. U. S. Atty., Cincinnati, Ohio, on brief for appellee.

Before PHILLIPS, Chief Judge, and EDWARDS and MILLER, Circuit Judges.

EDWARDS, Circuit Judge.

Appellants are two of three defendants who were indicted for violation of 18 U.S.C. § 2113(d) (1964) for armed robbery of a bank insured by the Federal Deposit Insurance Corporation in Evendale, Ohio, on March 7, 1969. All three of the defendants were convicted after a jury trial in the United States District Court for the Southern District of Ohio, Western Division, and sentenced to 15 years.

On these appeals it is undisputed that the Evendale Branch of the Fifth Third Union Trust Bank of Cincinnati was held up on March 7, 1969, by three men — two of whom escaped in one car, and the third, defendant Jerry Wynn, was captured while seeking to escape in another car. Appellants concede that Wynn was one of the bandits but deny that they were the other two. However, at trial, bank personnel definitely identified both Riley and Hodrick as participants in the robbery. Riley's fingerprint was found on an envelope in Wynn's pocket when he was arrested. When Hodrick's car was searched, a memorandum was found on which was written the license numbers of the two stolen cars which were used in the robbery.

Both appellants contend that the District Judge committed reversible error by failing to grant their motion for severance. The indictment in this case, however, charged that the three persons named (including the two appellants) committed one bank robbery on one specific day. Joinder of such charges is specifically authorized by Rule 8 of the Federal Rules of Criminal Procedure. Rule 14 of the Federal Rules of Criminal Procedure, of course, authorizes a motion for severance on a showing of prejudice.

No statements of codefendants were introduced at this trial, nor was there any denial of the right of confrontation. Cf. Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).

On this record we find no demonstration of prejudice within Rule 14, nor do we find any abuse of discretion on the part of the District Judge who denied the motions for severance. Opper v. United States, 348 U.S. 84, 75 S.Ct. 158, 99 L.Ed. 101 (1954); United States v. Jackson, 409 F.2d 8, 9 (6th Cir. 1969), and cases cited therein; United States v. Carter, 311 F.2d 934, 944 (6th Cir.), cert. denied, Felice v. United States, 373 U.S. 915, 83 S.Ct. 1301, 10 L.Ed.2d 415 (1963).

Both appellants also contend that the government failed to make out a prima facie case because it didn't prove the Federal Deposit Insurance Corporation coverage. Actually, the government introduced the Federal Deposit Insurance Corporation certificate, properly identified by an auditor for the bank, as proof of such insurance. We hold that this is an admissible business record and that the evidence was sufficient to establish the insurance for purposes of federal jurisdiction. United States v. Carter, 422 F.2d 519 (6th Cir. 1970); United States v. Skiba, 271 F.2d 644 (7th Cir. 1959).

The third issue (claimed as to appellant Hodrick only) concerned a motion to suppress all evidence, including a written memorandum of the numbers of the license plates of the two stolen cars which were used in the bank robbery. This memorandum had been found in a small notebook in Hodrick's automobile when it was searched under a signed consent. Hodrick testified and disputed the consent. But it was given after he voluntarily appeared with his wife at the FBI office the day after the bank robbery, having learned that he was a suspect. And there was ample evidence presented from which the trial judge could have concluded as he did that the consent form was "freely and voluntarily given" under the standards of Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968).

Appellant Hodrick also contends that his objection to the in-court identification of him as one of the three robbers should have been sustained because of a pretrial (and preindictment) lineup identification where he was not represented by counsel.

In this case the lineups and the trial were well after the Supreme Court decision in the lineup trilogy, United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L. Ed.2d 1178 (1967); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967).

In these three cases the Supreme Court spelled out a requirement of the presence of counsel at a police lineup, absent "exigent circumstances" or...