440 F.2d 1105 (5th Cir. 1971), 28805, United States v. Manning

Docket Nº:28805.
Citation:440 F.2d 1105
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Harold Eugene MANNING, Defendant-Appellant.
Case Date:March 30, 1971
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 1105

440 F.2d 1105 (5th Cir. 1971)

UNITED STATES of America, Plaintiff-Appellee,


Harold Eugene MANNING, Defendant-Appellant.

No. 28805.

United States Court of Appeals, Fifth Circuit.

March 30, 1971

Page 1106

Tracy Danese, Jacksonville, Fla., for defendant-appellant.

John L. Briggs, U.S. Atty., M. D. Florida, Allan P. Clark, Asst. U.S. Atty., Jacksonville, Fla., for plaintiff-appellee.

Before TUTTLE, DYER and SIMPSON, Circuit Judges.

DYER, Circuit Judge:

Manning was found guilty of robbing a Keystone Heights, Florida, bank in violation of 18 U.S.C.A. § 2113(a). 1 Urging us to reverse, Manning's principal arguments are that the court below improperly admitted, over his objection, evidence establishing that he was in possession of a large amount of cash immediately after the bank robbery; that the court should have excluded an airplane ticket, taken from his car during a warrantless search; and that because of prejudicial newspaper publicity, the trial court abused its discretion in refusing to grant a mistrial. We affirm.

Taking the view of the evidence most favorable to the Government, Glasser v. United States, 1942, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680, we find that the following events transpired between March 30, 1969, and May 5, 1969.

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On March 30, 1969, Manning, his wife Arlene, and John Troglen arrived at the Ohio Motel in Green Cove Springs, Florida, twenty miles from Keystone Heights, in a maroon Dodge automobile with California license plates YLT 122. Apparently they stayed at the motel until April 2, 1969, when they spent the night with Manning's parents, who reside in Green Cove Springs, At approximately 7:30 a.m., April 3, Ruis came to Manning's parents' home; then Manning, Arlene, Troglen, and Ruis all left in the maroon Dodge.

About 6:30 a.m., April 3, 1969, a white 1964 Dodge Coronet with Florida plate 45-1031 was discovered missing from Hardy's automobile lot in Starke, Florida, approximately twelve miles from Keystone Heights. Later the same day, it was recovered two miles from Keystone Heights.

Between 7:40 a.m. and 9:00 a.m., when the bank opened, various people saw Manning sitting in a white car, identified either as a Falcon or Dodge, which was parked in a yard about eighty feet from the bank. Manning was wearing a light colored cowboy hat. Soon after the bank opened, Manning and another man got out of the car and walked into the bank. Six eyewitnesses inside the bank positively identified Manning as the taller of the two robbers. Wearing a cowboy hat and holding an attache case and a pistol, he stood at the front door. 2 The other robber (later determined to be Ruis), armed with a shotgun, went to the tellers' windows and ordered them to place money in a bag held by him. A total of.$24,430.30 was taken.

Shortly after 9:00 a.m. Lyle Lydick and his grandson were traveling to a dump outside Keystone Heights to dispose of some trash. To reach the dump, they drove through a wooded area on an unpaved sand road, where they passed a maroon car with California license plates parked alongside the road. A woman was seated in the front on the passenger side. When the Lydicks returned from the dump along the same road, about 9:30 a.m., the maroon car was gone. However, a white car was parked in the woods approximately one hundred yards from the spot where the maroon car had been. About 11:30 a.m. the F.B.I. identified this car as the 1964 Dodge taken from Hardy's lot in Starke, Florida.

On April 4, 1969, Manning stored the maroon Dodge in Cassidy's Garage in Macon, Georgia. Later federal agents found the vehicle, obtained a warrant, and searched it. Inside, among other things, were papers and cards in the name of John Troglen, a lady's pocketbook containing latex gloves, correspondence addressed to Manning, a wallet containing an identification of Harold Eugene Manning, photographs of Manning, and male and female clothing. The Dodge bore a California registration in the name of Troglen. Arlene's fingerprints were on one door.

The following day, April 5, 1969, Manning and Arlene rented a house in San Bernardino, California, for one month from the owner, Mrs. Hammock. On April 7, 1969, Manning, Arlene, and another man appeared at a used car agency in San Bernardino; and she purchased a used Lincoln and a used Chevrolet, paying $1,358.90 in cash.

About this time Manning's mother received a package mailed by him. Disposing of the outer wrapping without observing from where the package was mailed, she found a Seagram whiskey carton. In an effort, so she said, to hide the whiskey from her husband, Mrs.

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Manning put the carton in the deep freeze. Subsequently Manning called his mother on the telephone but would not tell her where he was. He inquired about her health and asked whether she had seen Ruis. Alter when Manning's mother and father returned home from a few days' trip, Mrs. Manning, fearing that the whiskey might have frozen and exploded, took the carton out of the freezer and found money inside. Manning's father promptly called the F.B.I. On April 19, 1969, an F.B.I. agent called on the senior Mannings. He counted seven hundred seventy-five pieces of currency in the Seagram box-- eight five dollar bills, five twenty dollar bills, two hundred thirty-one ten dollar bills, and four hundred eleven one dollar bills, totalling two thousand eight hundred and sixty-one dollars. No decoy money taken during the robbery was found among these bills.

In the meantime, on April 11, 1969, Manning and Arlene moved into the Edgewater Beach Motel Apartments in Santa Cruz, California. Registering as Mr. and Mrs. John Troglen, they were known as Arlene and Gene while they were there. On April 20, 1969, when the motel manager brought a cake to Arlene, she saw stacks of money on top of the TV in the Mannings' room.

Manning and Arlene left the motel in Santa Cruz on April 21, 1969. On April 25, 1969, using the name John Troglen, they rented a mobile unit in a Portland, Oregon, trailer park for thirty days. Manning told the owner that they were looking for a business to buy-- that they had left money with his father. Five days later, on April 30, 1969, F.B.I. agents arrested Manning and Arlene in their trailer unit. In Manning's billfold the agents found a claim chceck for the 1966 Dodge stored in Cassidy's Garage in Macon, Georgia, a California registration for the car in the name of John David Troglen, and a social security card in Troglen's name. In a locked suitcase, they found thirty-two twenty dollar bills and twelve five dollar bills, a total of seven hundred collars. No decoy bills were found.

On May 2, 1969, F.B.I. agent Koldemer accompanied Mr. and Mrs. Hammocks to the San Bernardino house rented to Manning and Arlene on April 5, 1969. Apparently the Mannings had stayed there only the first day. There was garbage and refuse on the back porch, the back door was unlocked, and a strong stench was emanating from the home. Some decayed food was found on the kitchen table, and the sink was filled with stagnant dishwater. There were no items of clothing. A white Pontiac convertible bearing a Florida license was in the car port. Inside the car, which was locked, there was an airline passenger coupon issued by Delta Air Lines to Mr. and Mrs. D. Troglen for an April 4 flight from Macon to Atlanta, Georgia, thence to Los Angeles, California. On May 5, 1969, the Mannings' rental period having expired, the agent returned. Without a search warrant but with Hammocks' permission, he entered the car and removed the airline coupon.

The $2871 Deep Freeze Cash Cache and the $700 Locked Suitcase Stash

Manning strongly contends that the prosecutor did not prove that he mailed the money received by his mother. Moreover, he argues, even if he sent the funds, the mere fact that after the robbery he possessed large sums of money not identified as the stolen currency was irrelevant. Manning attributes identical irrelevance to the money seized at the time of his arrest, since it was never shown to have been stolen from the bank.

The record leaves us with no doubt that Manning sent $2871 to his mother. There is no suggestion that Mrs. Manning's receipt of the package was adventitious. However, Mrs. Manning did not attempt to reveal the source of this manna. Instead, she proclaimed it a mystery. Obviously the jury did not agree; to them the identity of Mrs. Manning's benefactor was manifest. While Mrs. Manning did not testify as to the identity

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of the sender, she had told her husband that her son had mailed the package. Immediately her husband notified the F.B.I. Could there have been a conceivable reason for calling the F.B.I. other than the husband's knowledge of the nexus between mother and son with regard to the money and his knowledge of the bank robbery? We think not. 'Even if a fact, standing alone, does not conclusively demonstrate guilt, a defendant is not entitled to have it filtered out of the evidence. An effort to blinker out all circumstantial color and tone would result only in distortion.' Jones v. United States, 4 Cir. 1958, 262 F.2d 44, 47, cert. denied, 1959, 359 U.S. 972, 79 S.Ct. 887, 3 L.Ed.2d 839.

Consideration of other relevant facts brightens the hues and clarifies the picture of Manning's involvement in the Keystone Heights robbery. Six witnesses positively identified Manning as one of the two armed robbers in the bank. Furthermore, after the robbery when Manning and his wife were moving from place to place, under assumed names and with no visible means of livelihood, a motel manager observed a large stack of money in their room. When Manning was apprehended, $700 in cash was found in his trailer.

Manning concedes that possession of large sums of money by an accused after a robbery can circumstantially prove participation in the crime of robbery but, he argues, only if the money is identified as that...

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